GETTING STARTED

First, log onto the website for Lexis-Nexis. Second, complete the brief Tutorial on how to search. Then, complete the How Do I section which outlines the various sources of legal research including cases, articles, statutes, law reviews, etc. This exercise should take about an hour of your time, but the experience will yield a great result!

Abbreviations

F. Supp.

The Federal Supplement. Contains cases decided by the various United States District Courts. These are the federal trial courts.

F. (2D, 3Rd)

The Federal Reporter. Contains cases decided by the various United States Courts of Appeals.

Decisions Of The United States Supreme Court Are Reported In The Following Three Publications

U.S. – United States Reports (the official report of Supreme Court cases)

S. C. – Supreme Court Reporter

L. Ed. – Lawyers Edition

N.B. There are also other nominative reporters that existed from 1790 to 1874, so-called because they are reported under the names of individual Supreme Court reporters.

Other Federal Reporters

L.W. – United States Law Week. From time to time a Supreme Court decision will be reported in Law Week before it is published in the other reporters. This citation is sometimes used in order to publish the decision as soon as possible after it is issued.

F.R.D. – Federal Rules Decisions. Reports decisions of the United States District Courts not reported in the Federal Supplement.

Westlaw

An Internet database that includes decisions of the U.S. Supreme Court, Federal courts, state courts, legal periodicals, etc.

Lexis-Nexis

An Internet database that includes decisions of the U.S. Supreme Court, Federal courts, state courts, legal periodicals, etc. See the note regarding Tutorials, above.

Findlaw

General legal source finder.

Decisions Of State Courts Are Reported In Regional Reporters As Listed As Follows

N.E. – Northeastern Reporter. Cases decided in the state courts of Massachusetts, Rhode Island, New York, Ohio, Indiana, and Illinois.

A. – Atlantic Reporter. Cases decided in the state courts of Maine, New Hampshire, Vermont, Connecticut, New Jersey, Pennsylvania, Delaware, and Maryland.

So. – Southern Reporter. Cases decided in the state courts of Florida, Alabama, Mississippi, and Louisiana.

S.E. – Southeastern Reporter. Cases decided in the state courts of Virginia, West Virginia, North Carolina, South Carolina, and Georgia.

S.W. – Southwestern Reporter. Cases decided in the state courts of Kentucky, Tennessee, Missouri, Arkansas, and Texas.

P. – Pacific Reporter. Cases decided in the state courts of Montana, Wyoming, Idaho, Kansas, Colorado, Oklahoma, New Mexico, Utah, Arizona, Nevada, Washing,ton, Oregon, and California.

N.W. – Northwestern Reporter. Cases decided in the state courts of Michigan, Wisconsin, Iowa, Minnesota, North Dakota, South Dakota, and Nebraska.

N.B. Some of the Reports have moved to the designation 2d or 3d, depending on the volume of decided cases.

Other Publications

N.Y.S. – New York Supplement. Cases decided in certain New York state courts. Some of these cases may also be reported in the N.E. Reporter.

Cal. Rptr. – California Reporter. Cases decided in the state courts of California. Some of these cases will also appear in the Pacific Reporter. The Cal. Reporter was started in 1960 and California cases decided prior to 1960 can be found in the P. Reporter

U.S.C. – United States Code. This contains a codification of the laws passed by Congress.

U.S.C.A. – United States Code Annotated. This contains the annotations to the United States Code and, there,fore includes cases that have been decided which interpret sections of the Code.

P.E.R.B. – Public Employment Relations Board.

P.E.R.C. – Public Employees Relations Commission. Various states have established such boards or commissions to conduct proceedings relating to collective bargaining by public employees in the state.

N.L.R.B. – National Labor Relations Board. The NLRB has jurisdiction over private employers covered by the National Labor Relations Act.

L.R.R.M. – Labor Relations Reporting Manual.

C.F.R. – Code of Federal Regulations. Federal Regulations are promulgated by federal agencies given the power by statute to adopt rules and regulations to carry out the purpose of the statute which that particular agency administers. Regulations have the force of law.

A.L.R. – American Law Reports. This reporter is annotated and contains discussion and other citations to similar cases after the reported case.

Am. Jur. – A legal encyclopedia.

A Legal Citation Will Usually Contain The Following:

Title of the Report or publication;

Volume number; (preceding the title)

Page number; (following the title)

Year of the decision (in parenthesis).

For example, 379 U.S. 241 (1964) would indicate that volume 379 of the U.S. Supreme Court Reporter, with the case beginning on page 241. The case was decided in 1964. Can you find the case on Lexis-Nexis and report its name?

Appendix C | Elements Of The Brief

Name Of Case

Plaintiff (Abbreviated as Π) v. Defendant (Abbreviated as Δ)

You must be very careful to read the facts of the case attentively in order to differentiate between the plaintiff and the defendant at the trial level and the appellant and the appellee at the appellate level. In the case name as it appears in a text, the names of the parties may have been reversed
if the plaintiff was successful at the trial level and the defendant has now filed an appeal. In the appellate case, the defendant’s name may be listed first because he or she has now become the appellant, as the party bringing the appeal. Thus, a case originally brought under the name of Smith v. Jones at the trial level may now be cited as Jones v. Smith because Jones, the original defendant and party who lost at the trial level, is now the appellant. As such, Jones’ name will be listed first. Since most of the cases you will read will be appellate cases, you must be especially mindful of this point. When in doubt, consult the original text of the case to ascertain the position of the parties.

Facts

A very brief, short hand statement of why the parties are in court should be recited. The facts should at a minimum include the key elements of the dispute, the theory of the plaintiff’s case, and the defense raised by the defendant, if any. At the conclusion of the fact section, always state who was the prevailing or winning party at the trial level and which party filed the appeal.

Issue Or Question

This is the key to the case! What is the very specific issue or question the court was called upon to decide? Formulating the issue is a very important task. It will take practice to state the issue precisely and not in too general terms. Sometimes the court may help you by using the words “issue” or “question.” Sometimes the task is much more difficult. Remember, just as in Jeopardy, the issue or question should always be stated in the form of a question! The issue should be stated in one clear and concise sentence.

Decision And Remedy

The decision, of course, will state which party won the case, i.e., the party for whom the judgment was rendered. Was the decision of the trial court upheld, reversed, modified, overruled, etc? What was the final ruling of the court? Be sure you are careful in stating the decision of the court. State precisely what remedy the court ordered, what the court decided, or what it ordered the parties to do. Sometimes a court will use the word “holding” in stating its decision.

Reason Or Rule

This is perhaps the most important part of a case. It is the statement of the legal principle or rule which not only helped to decide this case, but which will be helpful in deciding all future cases which involve similar facts. In many cases, this may be considered the precedent or rule of the case. Note that if the case cites, refers to, or relies on other cases, a Restatement of one of the various areas of the law (contracts, torts, agency, etc.), a special text (Wigmore, Corbin, Williston, etc.), or a statute, you should cite these under an “authority for the rule.” Finally, if a rule has several elements, you should state these elements clearly and distinctly.

Reaction

A personal comment might be in order for some cases. Do you agree that the case was decided in a proper way? Did the “right person” win? Is the decision legally correct? Is the decision “ethically” correct? This is generally not a required part of the brief, but it is, of course, an important part of the process of legal reasoning and of “thinking like a lawyer.” In some cases, however, you will be required to write a brief, one paragraph reaction to the result reached in the case. These “reaction paragraphs” (usually dealing with an issue involving ethics or public policy) will be specially noted in the course outline and will answer some specific questions raised in the cases.

Once you have “briefed” a case, the important part of the case—what you will need to remember and recall—will generally be the legal rule or precedent established in the case. It might be well to keep a special portion of your notebook reserved for recording these important legal rules. These precedents or legal rules will help you in deciding future cases, solving problems, etc., since, as you are aware, law is deductive in nature; that is, we use general rules or principles to solve important problems and to resolve specific questions. In some cases, a rule becomes so identified with a particular case that you will remember the rule as the “Rule of X Case”, or the “X Principle” or the “Rule of X v. Y.” An example might be the Rule of Lucy v. Zehmer, concerning the objective test used to determine if an offer has been made, the Rule of Wenger v. Rosinsky, concerning undue influence, or the Rule of Adams v. Lindsell, the “mailbox rule.”

All of this will become second nature to you by the time you complete your first course in law.

Appendix D | Contracts Problems

Problem Set 1

Fran agreed to purchase certain items on credit from the XYZ Corporation. The agreement called for the payment of substantial late fees and other charges and also called for a repossession of all items purchased if any individual payments were missed. Fran is a recent immigrant from Haiti who has great difficulty reading and writing English. In fact, Fran signed the contract using only a simple “X.” When the XYZ Corporation sought to enforce the contract after Fran defaulted, what defense might be available to Fran? Discuss.
X and Y entered into an express oral contract for the purchase of a certain amount of wood saws. X delivered the saws to Y and Y refuses to pay for them, stating that there was no specific agreement as to price. Is there an obligation to pay? Why? What price?
Carol read an ad in the local newspaper offering a baby grand piano for sale for $350.00. Carol visited the home of the offeror and gave the seller a check for $350.00, promising to return in the afternoon to pick up the piano. The seller then went off to church and after Mass, she stopped off at her good friend’s home where the general opinion of several of her friends was that the piano was worth much more than $350.00. The seller then had the piano appraised and found that it was indeed worth around $2,000.00. The seller then called Carol and said that “I’ve changed my mind and I’m not going to sell.” The seller mails the check back to Carol. Is there a contract? Can Carol get the piano? Why? Might the seller claim unconscionability?
Tom is a local franchisee of the Popeye’s Chicken Corp. A provision in the franchise agreement calls for the payment of $2,000 if the franchisee “fails to perform any of the terms or conditions of the contract.” Tom runs into some economic difficulties and misses a one month payment of the franchise fee and the franchiser now seeks to enforce the $2,000 clause. Is such a clause enforceable? What standard?
X and Y were involved in an automobile accident on South Orange Avenue, right near Center Street. Y claimed that X was responsible for the accident and X agreed to pay all of Y’s expenses and doctor bills rather than risk a potential lawsuit where X might lose his license. About a month later, X receives a letter from a Mr. Simeri (who lives on the intersection) in which Mr. Simeri says that he saw the entire accident clearly and Y definitely went through the red traffic light. X now refuses to honor his promise and Y sues for breach of contract. Who will win? Why? What test will the court apply?
Rick Veldman, age 17, signs up for Karate lessons and agrees to a 36 lesson package at $50.00 each. After taking the lessons, Rick attempts to get his money back, claiming that he was a minor when the contract was entered into. Does Rick have a legitimate legal argument? Suppose that Rick had waited until 8 months after reaching his age of majority to try to get his money back ? What rule do courts apply today to service contracts?
X, a 17 year old boy, agrees to pay back $1,000 to a local bank, in return for a loan to help pay a SAT tutoring course. Later, X receives a gift from his grandfather and attempts to cancel his contract with the bank. X not only wants to return the $1,000, but also wants to avoid paying the reasonable interest charges, claiming that he was a minor when he entered into the contract. Is X correct? What rule?
X, an infant, signed an agreement with a baby-sitting contracting firm, whereby X would receive 8 jobs per month in return for paying 15% back to the babysitting company. After X worked for the company for 3 months, she received a bill for $37.50, the share she had promised to pay. X now refuses to pay the bill claiming that she is a minor. Is she correct? What rule should the court apply?
X, a salesman for a natural gas company, falsely assured Y, a buyer of residential natural gas for home building purposes, that a certain minimum pressure would be all that would be needed to insure adequate home heating pressure. X knew that the specifications he had given out were false. However, Y was very knowledgeable in the area of natural gas and knew that X’s assurances were “probably unrealistic or false,” but Y went through with the deal because the “price was right.” Later, when the gas was shown to have improper pressure, Y sues X for fraud. What result? Reasons?
Fred, a minor, bought an I-Pod from Best Buy at a cost of $150.00, financing the purchase over an 18-month period. Fred reached his 18th birthday (the age of majority) and made a payment on account. Then Fred tried to rescind the contract using age as a defense. Can he now do so?
X and Y were both minors and entered into a contract for the purchase and sale of a motor bike. X later tries to rescind the sale. Is a minor’s contract with another minor voidable by whom?
John owed $25,000 to his neighbor Jim at 4% interest. When Jim requested payment, John admitted that he was unable to do so. Jim then told John that if he did not make
an immediate payment, he would be forced to sue John and possibly put a lien on John’s house. John thereupon agreed to re-finance the amount of the loan at a higher interest rate. Later, when Jim tried to enforce the new agreement, John defended on grounds that he entered into this agreement under “duress.” Who is right? Why?
X went to work as president of a hat factory. X learned that the factory was having some difficulty in making its payroll, so X orally assured the workers that if the factory was unable to meet the monthly payments to its workers, X would do so personally. Later, X had a disagreement with his Board of Directors and quit his job. When the factory was unable to meet its payroll, the workers contacted X, reminding him of his earlier promise. Can X be compelled to honor his promise? What defense might be available? Would any exception to the general rule apply? Suppose that X were a partner in the hat factory. Might that change the result?
X orally sold a piece of real estate to Y. Y moved on to the premises, put in an “in- ground” swimming pool, and made other improvements to the property. Later X tried to deny that a contract for sale had been entered into and claimed the Statute of Frauds as an absolute defense. Who is right? Why?
Elvis Presley agreed orally to hire a booking agent to represent him for a three-year period or “until such time as you secure for me 12 major contract bookings.” Later, Elvis fires the agent and the agent sues for breach of contract. Elvis’ lawyer asserts the Statute of Frauds as a defense. Who is right? Discuss. Suppose the contract was for an 18-month period and contained no specific task assignment?
Andrew entered into an oral contract for the purchase of $5,750 worth of sporting goods and other athletic supplies. Later, Andrew refused to accept the goods and was sued for breach of contract. What defense might be available to Andrew? Suppose the goods had been specially manufactured for use by Andrew. Might that change the result? What is a specially manufactured good?
X sold Y a TV repair business. The contract contained a clause which prohibited X from opening up a similar business in a 10 mile radius for a period of 5 years. Is such a clause enforceable? Why or why not? What rule?
X set his son up in a printing business. When his son began to experience some financial setbacks, X called various suppliers and orally promised:
1. I’ll stand behind any losses my son incurs; or
2. If my son can’t pay, just send me the bills and I’ll make good on them. Later, the business experiences real difficulty and various creditors contact X and seek payment.
3. What defense might be available to X? How would you counter this argument? Discuss.
Peter Grace promises the Trustees of the local University that he will be giving the University a $7 million dollar gift for the construction of a modern residence dormitory. Invited to the campus, Mr. Grace comes under attack by various student radicals for alleged involvement in covert CIA activities. Incensed, Grace cancels his pledge to the University. However, in the meantime, the University had expended considerable sums to hire an architect, draw up plans and break ground for the new structure, all costing around $2 million dollars. Is Mr. Grace’s promise to the University enforceable? On what showing? To what extent? Discuss.
X contracted to purchase 100,000 bushels of apples from a certain fruit farmer in Spokane, Washington. Just prior to the delivery date, a major volcano erupts and the entire crop is destroyed. Might the farmer be compelled to honor his contract? Explain. What defense might be available?

Problem Set 2

XYZ Corporation sent a letter to Harry Hotdog, in which it offered Harry employment as a managerial trainee at an annual salary of $35,000. Harry wrote back, stating: “I will accept, but would you consider raising the salary to $36,000? I don’t feel that I can work for any less than $36,000 per year.” Can XYZ Corporation now offer the job to someone else?
Fly-By-Night Construction Company agreed to construct a one car garage for Innocent, who agreed to pay $7,500. Before the garage was built, Innocent promised to pay Fly-By- Night an additional $3,700 if it would build a two car garage instead of a one car garage. After Fly-By-Night had completed the two car garage, Innocent paid $7,500, but refused to pay any more. Fly-By-Night sues Innocent for the additional $3,700. Can Fly-By-Night collect? Is there a “consideration problem” here?
For fifteen years, Jim has mowed John’s lawn on Friday afternoons during the months of April through October, and John has paid Jim ten dollars for each mowing. One Friday, Jim brings his mower to John’s house, says hello to John, and mows John’s lawn. During this time, John watches Jim but says nothing. Later, John refuses to pay, alleging that
he and Jim had not entered into an express agreement for mowing the lawn. Can Jim collect? Upon what theory?
Sonny borrowed $3,000 at no interest from his father. The loan was to be repaid January 1, 2017. On that date, Sonny called his father and said that he only had $2,000. He asked if his father would accept the $2,000 as full satisfaction of the debt. The father agreed. After having received the $2,000, the father asked for an additional $1,000. Sonny refused to pay it, and the father sued. Who will win, and why?
Uncle promised 16-year old Nephew a gold watch if Nephew would refrain from smoking until his 21st birthday. Nephew did refrain from smoking until age 21, but when he tried to collect the watch, Uncle refused. Can the Uncle be compelled to pay?
Craig wanted to stage a production of the well-known play, “Kick Your Dog Down a Dusty Road.” He wrote Natalie, a famous actress, offering her the lead in the play at $10,000 per week for six weeks. His letter also stated “Offer ends in one week.” Natalie received the letter the next day and immediately mailed an acceptance. Natalie’s letter was temporarily lost in the mail and did not arrive until five days after she had dispatched it. Craig, not hearing from Natalie, decided to abandon the project. If Natalie sues Craig, what will be the result?
Jack offered to sell a prime piece of real estate to I.O.U., a private university. I.O.U. paid Jack $500 to keep his offer open for 6 months, from September I to March 1. In October, Jack wants to sell the property to a third party, Industrialist, for a higher price. May Jack do so?
In January, Two & Two (an accounting firm of national reputation based in New York) procured lists of all senior accounting students in the nation who ranked in the top 10 percent of their graduating classes. Two & Two sent out form letters on firm stationary which congratulated each recipient on his or her fine academic record. The letter also stated, in pertinent part:

Should this letter be characterized as an offer? Why or why not?
Thrifty promised to donate $500 to his favorite charity, the Irwin Home for Impoverished Lawyers. In reliance on Thrifty’s pledge, the Home immediately ordered some badly needed three-piece suits for some of its inmates. Thrifty later changed his mind and refused to make the donation. Can Thrifty be compelled
to make the donation? What showing?
On June 1, 2016 the Management Group, Inc. offered Hillary a position as house counsel, to begin September 1, 2016. Hillary did not communicate with the Management Group until October 1, 2016, when she showed up at its offices and announced that she wanted the job. The Management Group had already hired someone else. Is Hillary entitled to the job.
While Hank Homeowner is away on vacation, workmen from the Cosmo Construction Company erroneously re-surface Hank’s dilapidated driveway, mistaking Hank’s house for the house on which they were supposed to be working. Cosmo later bills Hank, and Hank refuses to pay. Cosmo then sues Hank, arguing that Hank received a benefit, and thus should be required to pay. Discuss Cosmo’s chances of success under both contractual and quasi-contractual theories.
Farthing published an advertisement in the newspaper offering a reward of $500 for the return of her cat. After several weeks, she changed her mind, and posted several signs around town that stated that her offer was withdrawn. Goodguy saw the newspaper ad but did not see the signs. He returned the cat and claimed the reward. Must Farthing pay him?
Black wrote to Berlin: “I have decided to sell my farm, Blackacre. I would want around $65,000 for it. Let’s have lunch next week and discuss it.” Has Black made an offer? Why or why not?
Widow offered a reward of $50,000 for the apprehension of the person who had killed her husband. Sheriff Goodguy saw the reward offer. In the course of his duties, he apprehended the killer. Several days later, he claimed the reward, but the widow refused to pay. Should the Sheriff collect?
The Klott’s signed an agreement to purchase a house owned by the Stewart’s. The day after the Klott’s moved into the house they became aware of malfunctioning water well in need of major repairs. During the negotiations for the sale of the house, no mention was ever made about the water supply. The Klott’s did not ask for any information; they had assumed the water came from the city well. Nor did the Stewart’s volunteer any information. The Klott’s sue the Stewart’s for damages, claiming that there was a fraudulent nondisclosure and concealment of the faulty well. Assuming the Stewart’s were aware of the faulty condition of the well at the time of the sale, are they liable for damages for not disclosing this information?
Wilson had been working for the telephone company when Hayes and the Winslow Construction Co. promised her a job as a flag girl on a construction job. Wilson was told to quit her present job, which she did. Hayes and the Winslow Construction Co. did not fulfill their promise to employ Wilson, and she sues to recover lost wages during her period of unemployment. Are Hayes and Winslow Construction Co. liable on their promise? What theory?
Rose, a minor under the age of 18, purchased an automobile from a Ford Motors dealer. Seven months later, Rose declared the contract invalid since, as a minor, she wasn’t permitted by law to make a contract for the purchase of an automobile. Rose demanded: (1) that the contract be declared invalid and (2) that the entire purchase price of the automobile be refunded to him. Will her demands be honored?
Tovar, a Kansas physician, sought employment in an Illinois hospital as a resident physician. Terms of employment were agreed upon and Tovar signed a contract. After two weeks of employment with the Illinois hospital, Tovar was summarily dismissed on the grounds that he did not have a valid Illinois medical license. Tovar sues the hospital for wrongful termination of his employment contract, despite acknowledging that he did not have an Illinois license. Tovar claims that the license is not necessary to the fulfillment of the terms of the contract. Is the hospital liable on the contract?
On October 20, 2016, Uscian and Blacconeri entered into a written contract for the sale of a certain parcel of land owned by Uscian. The contract was expressly contingent upon Uscian obtaining approval from the city to subdivide the property. Uscian’s application for subdivision was denied by the city. Thereafter, in December of 2016, the parties orally agreed to sell the property without first obtaining a subdivision. Later Uscian backed out of the deal. Blacconeri now sues for specific performance of the written contract. Uscian sets up the Statute of Frauds as his defense. Is this a valid defense? Explain.

Problem Set 3

Torbert accepted Jordan’s proposal that they go to the Fall Cotillion together. In return for Jordan’s willingness to purchase tickets and pay all expenses, Torbert set aside the time and restricted herself from doing anything else on the evening of the dance. Jordan cancels the date at the last minute. Any possible basis of recovery? How much? (What is the measure of the damages?)
Faulkner, seventeen years old, realized that his contracts were not enforceable because of his age. He bought an expensive television set, for which he agreed to pay $47.50 per month for twelve months. The seller did not know that Faulkner was a minor. After using the set for two months, Faulkner refused to make additional payments, returned the set, and demanded return of all monies paid. General Rule? Exceptions? State law exceptions?
Reynolds, a minor, purchased a winter coat at a reasonable price. After wearing the coat for more than three months, she returned it to the store and demanded her money back. Will she recover? Why or why not?
Colby was unconscious as a result of a hit-and-run accident. He was taken to the hospital, where he underwent emergency treatment and surgery. After regaining consciousness, Colby denied any responsibility for the hospital charges, stating that he had been incompetent to contract while in an unconscious state. Could Colby be compelled to pay?
Engineering Research, Ltd., hired Jacobs to work on a research project that would require at least three years to complete. The offer of salary and employment were oral and Jacobs accepted it. Is the agreement enforceable?
Zabinsky, an artist, was commissioned to do a portrait of Governor Simms. When he was called to Europe to do portraits of several members of a wealthy family, he assigned the duty to a famous artist who had taught him in graduate school. Is such an assignment possible? Why or why not? What showing?
Wendel, an Olympic Skater, turned professional skater and signed an agreement with Ice Shows. After four weeks of practice, Wendel suffered a broken ankle. Any further obligations required of either party? Can Wendel be sues for breach?
Stolts orally agreed to buy an 18th century chest from Empire Antiques for $4700. When Stolts went to pick up the chest, Empire refused delivery, stating that the chest was going to be given to a museum. Can Stolts get the chest?
Goldstein found a watch with no identification so he could not locate the owner. An advertisement in the paper on Tuesday identified the watch and offered a $25 reward. Goldstein responded to the ad and returned the watch. The owner refused to pay the reward stating that the ad was “merely an invitation to trade” and not a firm offer. May Goldstein recover the $25 reward?
While intoxicated, Russ bought a fur jacket from Sam paying her with a check for $1,300. Several hours later, remembering what he had done, he stopped payment on the check. Sam sued Russ for the $1,300 and refused to accept the return of the coat. Will the suit succeed? Why or why not?
In a state where gambling is illegal, Hopkins agreed to act as a bookie. Hopkins’ boss refused to pay him for work done in the bookie establishment. Hopkins sues. Will he collect?
Mrs. Williams purchases various items from a local retail store totaling almost $1,800. She signs a printed form which provided for installment payments and forfeiture of all items purchased if one of the installments was not paid on time. Mrs. Williams sues to set the contract aside. What basis? Discuss.
Freddy sends Larry an offer to purchase gasoline. Larry receives the offer on August 12 and immediately wires Freddy that he is not interested in the deal. Prior to the receipt of this wire, Larry calls Freddy and says that he accepts. Is there a contract? Why?
Under what circumstances might a newspaper ad or one found on the television be considered as an offer?
Gerry bids on a construction job as a subcontractor. The contractor receives his bid but prior to the awarding of the contract, Gerry notices that he has made a clerical error and attempts to notify the contractor of this fact. Are there any circumstances where a revocation at this point might be possible?
Freddy calls his friend Joe on the phone and states: “Remember those three pieces of land in Arkansas you were interested in buying? I’ll make them available to you for three weeks.” Three days later, however, Freddy sent Joe a letter and says: Lots sold. Sorry.” Joe contends that he had a firm option for three weeks. Is he correct?
How does the U.C.C. define “goods”? “merchant”? “unconscionability”?
Offer: Will sell between 6 and 7 thousand tons of potatoes: Acceptance: Will purchase 6,550 tons of potatoes. Is there a contract?

Appendix E | Legal Glossary

With An Emphasis On Legal Proceedings

Affidavit

A statement of facts based on personal knowledge, written or adopted by a person (called the affiant) who signs it before a notary and swears to the truth of the statement.

Affirmative Defenses

Listed in Rule 8 of the Federal Rules Of Civil Procedure (FRCP); these defenses must be pleaded (stated) in the answer or they are waived; they are generally aimed at denying the merits of plaintiff’s cause of action.

Alternative Dispute Resolution (ADR)

An umbrella term for a number of mechanisms which resolve disputes outside of formal litigation. These can include negotiated settlements, mini-trials, mediation, and arbitration.

Answer

Governed by Federal Rules Of Civil Procedure (FRCP) Rules 7 and 8, this pleading contains admissions or denials of the allegations contained in plaintiff’s complaint. A defendant also puts affirmative defenses (see above) in his/her answer.

Appellant

The party who is dissatisfied with the judgment of the trial court and seeks to have that judgment reversed or altered by appealing the judgment to a higher court.

Appellate

The party opposing the appellant on appeal (sometimes called a respondent).

Cause Of Action Or Claim

A series of allegations of facts asserted as a legal basis for seeking some sort of relief from the court.

Civil Law / Criminal Law

Civil law cases typically are disputes between persons or entities (like corporations or governments) in which the remedy sought is money damages, or sometimes an order that the defendant do or refrain from doing certain acts, called an injunction. Civil law cases include torts, suits about contracts, domestic relations (family law) cases, and many other kinds of cases. A criminal law case, by contrast, is always brought by a governmental entity (through a federal or local prosecutor) against a defendant for a violation of a criminal law statute where the penalty may be a fine or imprisonment or both. It should be noted that the victim of a crime may be a witness, but is not really a party to the prosecution of a criminal defendant. Many acts can subject a defendant to both civil law and criminal law actions. For example, a defendant who commits certain kinds of fraud may be prosecuted by the government and put in jail, and may also be sued by the victim for money damages.

Class Action

FRCP Rule 23; a device whereby a representative may assert the rights of numerous other persons in a lawsuit without the necessity of having each class member participate in the lawsuit.

Complaint

FRCP Rules 7-11; the initial pleading in a lawsuit containing a statement of facts comprising the plaintiff s cause of action or claim.

Counterclaim

FRCP Rule 13; a claim filed by a party (usually a defendant) against an opposing party (usually a plaintiff) who has already filed a complaint against him. Counterclaims may be permissive or compulsory.

Cross Claim

FRCP Rule 13(g); a claim stated by a party against a co-party (usually a defendant cross claims against a codefendant).

Defendant

The party against whom a complaint (or criminal charge) is filed.

Demurrer

An historical term for what the defendant asserts to challenge whether the plaintiff has stated a legally sufficient claim. Now handled by the FRCP Rule 12(b) motion to dismiss for failure to state a claim.

Deposition

FRCP Rule 30; a discovery device whereby the litigants before trial may question under oath a party or witness in a lawsuit.

Discovery And Disclosure

FRCP Rules 26-37; the processes by which litigants may learn before trial what evidence their opponent intends to rely on discovery may include depositions, interrogatories, requests for documents, physical examinations, etc.

Diversity Jurisdiction

28 U.S.C. 1332 (Also Art. III, Sec. 2, U.S. Const.); a shorthand phrase for one of the kinds of cases over which federal courts have subject matter jurisdiction, i.e., cases between citizens of different states (where the amount in controversy exceeds $75,000). N.B., state courts may also hear this kind of case, and the plaintiff may choose either federal or state forum.

Due Process Clause

The fourteenth amendment to the U.S Constitution provides that no person may be deprived of life, liberty or property by the state without due process of law. This phrase governs many aspects of a lawsuit, including the location of the suit and the manner in which a person is notified of a suit.

Federal Question Jurisdiction

28 U.S.C. 1331 (Also, Art. III, Sec. 2, U.S. Const.); the short-hand term used to describe the type of subject matter jurisdiction possessed by the federal courts to hear cases arising under federal laws (federal statutes) or the U.S. Constitution. no minimum amount in controversy is required. State courts may also hear federal question cases except where federal jurisdiction is exclusive, e.g., bankruptcy, patent cases, admiralty, and a few other areas.

Garnishment

Like attachment, a device used to bring property in the form of a debt under the court s’ jurisdiction. It is also used to collect unpaid judgments and other obligations, for example, by taking money out of the debtor s paycheck.

Impleader

FRCP Rule 14; a procedural device whereby a party, usually the defendant, may bring into a lawsuit another person, asserting that such person is or may be liable to him for all or part of the plaintiff s claim.

In Rem Jurisdiction

A basis for the court to adjudicate rights in property between specific persons; the controversy may or may not relate to the property.

injunction

FRCP Rule 65; an equitable remedy issued by a court, ordering a person to do something or to refrain from doing something.

Interrogatories

FRCP Rule 33; a discovery device whereby a party to a lawsuit submits written questions to another party who must then respond to those questions in writing.

Long-Arm Statute

A state law authorizing the courts of that state to exercise personal jurisdiction over persons not found within the state but who have a certain relationship to the state. The exercise of jurisdiction over non-residents under a long-arm statute must not exceed the limits of the due process clause; i.e., the non-resident must have minimum contacts with the state such that the exercise of jurisdiction over him does not offend traditional notions of substantial justice and fair play.

Objective Standard

Standard that measures a persons’ behavior or knowledge against what a reasonable person would have done or known, thus holding the person to a community standard of behavior.

Opinion

The written product of a judge or judges handing down and explaining a decision. Opinions are usually written by appellate courts, but may also be written by trial judges who resolve legal issues at the trial level. A majority opinion is joined by a majority of the judges participating in the decision. A dissenting opinion disagrees with the holding of the majority; a concurring opinion agrees with the majority’s holding but for different reasons, a plurality opinion is joined by the largest number of judges when no majority opinion is achieved, and there can also be opinions that dissent in part, concur in part, etc.

Personal Jurisdiction (In Personam Jurisdiction)

The power of a court to require a person to come before it and defend a lawsuit or suffer a judgment against that person. Courts generally have personal jurisdiction over persons who are citizens of the state in which the court is sitting, and over non-residents who have certain minimum contacts with the state such that the exercise of jurisdiction over them does not offend traditional notions of substantial justice and fair play.

Pleadings

FRCP Rules 7-11; those documents filed with the court reflecting the matters in issue; complaints answer and reply (also counterclaims, etc.).

Remand

An order made by an appellate court whose decision that does not end the case. The case is sent back (remanded) to the trial court to do whatever is necessary to be consistent with the appeals courts’ decision. This may mean conducting a new trial, entering judgment for a different party, holding a hearing on a part of the case, etc.

Removal

28 U.S.C. 1441 et seq., a method whereby a case commenced in a state court can be removed (changed) to a federal court if the federal court would have been a proper forum originally.

Res

A thing; tangible or intangible property.

Res Judicata

Literally, the thing has been decided. A doctrine which ensures that there be finality to litigation; once a matter is adjudicated by a court of competent jurisdiction, it cannot be relitigated.

Reversed

A ruling made by an appellate court disapproving the judgment entered or action taken by the lower court. It does not necessarily mean that the party who lost in the lower court automatically wins; it may mean only that she gets a new trial.

Service Of Process

FRCP Rule 4; the delivery of a summons and complaint to the defendant which commences a lawsuit. While a court may theoretically have power to exercise personal jurisdiction over a particular defendant, it cannot do so until the defendant has been served with process, or otherwise given the best notice practicable under the circumstances.

Subject Matter Jurisdiction

The authority granted to a court or court system by its sovereign (state laws or constitutions for state courts; federal laws or the U.S. Constitution for federal courts) defining what types of cases it may hear. Certain state courts may be authorized to hear only probate cases, for example; the federal courts are authorized to hear diversity cases and federal question cases, among others, but not divorce cases.

Subjective Standard

A standard that measures a person s behavior against what that person is capable of doing, thus finding his/her behavior acceptable if the person did the best that he/she could do. Similarly, when asking whether a person knew a fact, a subjective standard requires that a person actually/subjectively had knowledge of the fact, not whether the person should have known the fact, or whether a reasonable person would have known the fact (compare objective standard, above).

Summary Judgment

FRCP Rule 56; a means whereby a court can decide a case as a matter of law without a trial if there are no genuine issues of material fact in dispute.

Third Party Defendant

FRCP Rule 14; in an impleader situation, the person brought into the action by means of a third party complaint.

Third Party Plaintiff

FRCP Rule 14; in an impleader situation, the third party plaintiff is usually the original defendant, who seeks to bring in a third party defendant to answer for some or all of the original plaintiff s claim against him.

Tort

A generic term encompassing many different causes of action in which a plaintiff alleges some injury caused by the defendant. Torts include such actionable wrongs as assault, invasion of privacy, product liability (injury caused by defective goods) and many others. The most common tort is an action for negligence; a person injured by the negligent conduct of another (such as in an automobile accident) may sue to recover monetary damages for those injuries.

Venue

Pertains to the particular location of the court in a court system in which a case is to be heard; governed by state or federal statutes (28 U.S.C. 1391). Venue is a matter of convenience rather than power.