The Paralegal ProfessionalModel Midterm Examination

True/False Questions

1. Generally, the terms “paralegal” and “legal assistant” are interchangeable. (T)

2. The NFPA and NALA are two, prominent, national paralegal organizations. (T)

3. The American Association for Paralegal Education believes that academically qualified paralegals are those with bachelor’s degree in legal studies. (F)

4. The practice of law is regulated at a national level. (F)

5. The ABA believes there is no need to license paralegals. (T)

6. An ethical wall is a phrase that describes how a paralegal must separate his or her personal opinions about the client from professional obligations. (F)

7. Legal assistants who work in large law firms are likely to have more client contact, and a wider variety of tasks. (F)

8. Resumes need to be reviewed and updated periodically. (T)

9. Corporations usually do not hire paralegals or legal assistants because of the tradition of always staffing a corporate law department with lawyers. (F)

10. Paralegals can engage in client interviews. (T)

11. Poor grammar or spelling is not that important when sending emails to other professionals. (F)

12. According to the material presented in the text, those with Latino backgrounds tend to have a fatalistic view of the world. (T)

13. Common law was developed by judges in England. (T)

14. The U. S. Constitution is equal in status to federal statutes. (F)

15. Trial courts make precedent. (F)

16. Federal judges, once elected, serve for life. (F)

17. The Court of Appeals for the Federal Circuit is located in Washington, D.C., and hears appeals involving such cases as patent law, and claims against the federal government. (T)

18. A court must have both subject matter jurisdiction and personal jurisdiction in order to be able to hear and decide a case. (T)

19. Agencies only have the powers that are delegated to them by the legislative or executive branches of government. (T)

20. One of the powers of administrative agencies is the power to adjudicate cases, which is a type of judicial authority. (T)

21. One of the prerequisites for appealing an action of an administrative agency is that the one seeking an appeal must first have exhausted all administrative remedies. (T)

22. Civil litigation is begun by the filing of an answer. (F)

23. Statutes of limitations are designed to require the defendant to respond to the plaintiff’s complaint within a certain period of time. (F)

24. A motion for summary judgment is a pretrial motion designed to end the lawsuit before a trial by arguing there are no material questions of fact. (T)

25. Convictions require unanimous vote. (T)

26. A burglary is committed when someone wrongfully breaks into, or without authorization enters into, another’s property. (F)

27. The Fourth Amendment protects defendants against being forced to testify against themselves. (F)

28. Only the party who lost can bring an appeal. (F)

29. An appellate court’s job is to make findings of law. (T)

30. Appeals from the decisions of the U.S. district courts are made to the U.S. courts of appeals. (T)

Multiple Choice Questions

1. Paralegals and legal assistants work in the following settings:

a. law firms.b. corporations.c. government agencies.

d.* all of the above

2. According to a 1998 ABA survey on the use of legal assistants:

a. lawyers in larger law firms gave greater responsibilities to their legal assistants.

b.* lawyers in smaller law firms gave greater responsibilities to theirlegal assistants.

c. lawyers in corporate law departments gave greater responsibilities to their legal assistants.

d. lawyers in government agencies gave greater responsibilities to their legal assistants.

3. The NFPA’s certification exam is known as:

a.* PACE.b. PRO.c. CERT.d. CASH.

4. The following activities would be considered the unauthorized practice of law when done by paralegals or legal assistants:

a. helping a client determine which type of power of attorney is the right one.b. telling a client what statute applies to their situation.c.* both of the aboved. none of the above

5. An ethical wall is needed to:

a. isolate an attorney or paralegal from other members of the firm in order to protect the interests of that attorney or paralegal’s former clients.

b. protect against a breach of confidentiality. c.* both of the aboved. none of the above

6. Which of the following statement about the relationship between lawyer ethics rules and legal assistants is true?

a.* Legal assistants are bound to follow lawyer rules of conduct since legal assistants work for lawyers, who are bound to follow those rules.

b. Legal assistants are bound to follow only those rules that directly mention legal assistants.

c. Legal assistants are bound to follow the ABA Model Guidelines on the Utilization of Legal Assistant Services.

d. Legal assistants are not bound to follow any set of lawyer ethics rules.

7. In midsize to larger law firms, the one who has the most executive power is:

a. the senior partner.b. the rainmaker.c. the litigation department head.d.* The managing partner.

8. Pro bono paralegals are those who:

a. think U2 is the best rock band in the world.b. engage in legal work that is in favor of political change.c.* engage in legal work without compensation, or with reduced ratesd. none of the above

9. As some courts have found, in order for a paralegal or legal assistant’s work to be billed as a separate part of the attorney’s fee:

a. the paralegal’s supervising attorney must request ahead of time that the paralegal’s work be specifically reimbursed.

b.* the paralegal’s work must be of the type the attorney would normally do.c. the attorney must sign an affidavit stating the paralegal is qualified to do

the work.d. the paralegal must sign an affidavit stating the attorney supervised the

work.

10. When interviewing clients, paralegals and legal assistants need to be especially careful about the ethical problem of:

a. bad breath.b. poor posture.c.* the unauthorized practice of law.d. illegal solicitation.

11. Those legal assistants who work in litigation practices can do the following:

a. prepare written interrogatories.b. attend trial and assist in the handling of witnesses, exhibits, and evidence.c.* both of the aboved. none of the above

12. According to the text, all of the following are likely cultural differences between men and women except:

a. a man will not express his true feelings through facial expression.b. a woman will take conflict personally.c.* a man will hear your literal words and understand the underlying emotion.d. a woman’s communication style will be indirect, except with other women

of equal rank.

13. Stare Decisis is:

a.* the doctrine on which our common law system is based.b. the phrase that is used in the Constitution to describe legislative authority.c. the method of resolving disagreement between the federal branches of

government.d. inappropriate, because staring is rude.

14. The doctrine of separation of powers:

a. requires the U.S. Supreme Court to take cases from the state courts.b. requires the federal government to remain separate from the state

governments.c. divides the U.S. Congress into a House of Representatives and a Senate.d.* divides the federal government into three branches.

15. The Bill of Rights consists of:

a. the Magna Charta.b.* the first ten amendments of the Constitution.c. The Due Process Clause and the Equal Protection Clause.d. Articles I-III of the Constitution.

16. An example of a limited-jurisdiction trial court is:

a. juvenile court.b. probate court.c.* both of the aboved. none of the above

17. When a justice in the minority writes an opinion that shows his or her opposition to the majority’s decision, the opinion is known as a:

a. plurality opinion.b. concurring opinion.c. majority opinion.d.* dissenting opinion.

18. The ADR process whereby a neutral third-party hears the merits of and decides a legal dispute, but not as part of a trial, is known as:

a.* arbitration.b. conciliation.c. facilitation.d. mediation.

19. Administrative agencies are created with the primary goal of:

a.* creating a body of professionals who are experts in a specific field.b. alleviating the tax burden on the public.c. creating distinct sets of law with a unique perspective.

d. alleviating the time constraints on the legislature.

20. A court may suspend the requirement that the administrative decision be final before it can be reviewed if:

a. the petitioner would suffer irreparable injury.b. the petitioner would suffer economic hardship.c.* either of the aboved. none of the above

21. The agency that regulates food, drugs, and cosmetics is the:

a. FBI.b. FTC.c. FEC.d.* FDA.

22. The most significant difference between a civil action and a criminal action is the:

a. courts where the types of cases are tried.b. statute of limitations.c.* burden of proof required.d. the type of evidence admitted.

23. If the defendant does not answer the complaint, the result will be:

a. summary judgment.b. judgment on the pleadings.c.* default judgment.d. affirmative judgment.

24. All of the following are forms of discovery except:

a.* requests for settlement.b. depositions.c. production of documents.d. interrogatories.

25. Wrongfully taking someone else’s property by force or threat of force is a:

a. burglary.b. theft.c. larceny.d.* robbery.

26. Which of the following is an exception to the Fourth Amendment’s requirement of a search warrant?

a. evidence in plain viewb. evidence likely to be destroyed

c.* both of the aboved. none of the above

27. The reading of Miranda rights protects a defendant from:

a. unlawful searches.b. unlawful seizures.c. double jeopardy.d.* self-incrimination.

28. The person who takes down the proceedings and prepares a written transcript of what has occurred in a hearing or trial is known as the:

a. court clerk.b.* court reporter.c. court bailiff.d. court assistant.

29. The U.S. Supreme Court tends to grant review of petitions for review under which of the following circumstances?

a. when there is a major constitutional question at issueb. when there is a split opinion among the circuit courts of appeals on a

particular legal issuec.* both of the aboved. nNone of the above

30. If an appellate court believes there had been no errors in application of the procedural law or the substantive law, it will:

a.* affirm the lower court’s decision.b. reverse the lower court’s decision.c. remand the lower court’s decision.d. vacate the lower court’s decision.

Essay Questions

1. Why are paralegals and legal assistants considered valuable to the legal system?It is certainly no surprise to realize that lawyers are quite expensive, yet also quite necessary. Many people either can’t afford the services of a lawyer, or believe they can’t. But, the use of paralegals and legal assistants has provided a win-win solution to the problem of the cost of legal services. Since the late 1960s, paralegals and legal assistants have been formally recognized as a distinct part of the legal team, separate from secretaries or other clerical personnel. And as the paralegal occupation has grown, its status—and occupational requirements—has increased. Paralegals and legal assistants, by virtue of their definition, engage in substantive legal work, the kind of work that lawyers do (with certain limitations

and prohibitions). Because paralegals may engage in real legal work, provided they are appropriately supervised, the lawyers for whom they work are able to engage in other legal work. This allows the law firm to increase its revenue. However, clients will receive a smaller bill when legal assistants are used effectively because the work of legal assistants is billed at a lesser rate than that of lawyers. Therefore, the use of paralegals and legal assistants allows more members of society to be able to afford legal services, while at the same time allows employing lawyers at private law firms to increase their earnings.

2. Why could it be said that it is more difficult for paralegals and legal assistants to understand their ethical duties than it is for lawyers?For lawyers, there is no misunderstanding about what rules of ethics need to be obeyed, since lawyers are obligated to follow the rules of ethics that are in operation in the jurisdiction where those lawyers are licensed. Law licensure is jurisdiction-specific, not national. So, even though the ABA has rules of ethics in place, those rules have no direct effect on lawyer conduct, although the set of ABA rules that have been adopted in the lawyer’s jurisdiction apply. Paralegals and legal assistants aren’t licensed, as lawyers are, but paralegals and legal assistants still need to follow rules of ethics. However, there is no national, uniform set of paralegal ethics; there are paralegal rules, or guidelines, created by the ABA, the NFPA, and the NALA. Which one needs to be followed? The answer could be none of them, because paralegals are required to behave with the same professional obligations of the lawyers for whom they work. Because paralegals are regulated through their supervising attorneys, who are responsible for the professional missteps of their non-lawyer employees, then paralegals need to know the attorney rules of ethics of the jurisdiction where they work. Beyond that, many jurisdictions have adopted paralegal or legal assistant guidelines, but these apply to lawyers who use paralegals, and not directly to paralegals. Furthermore, those legal assistants who belong to a national legal assistant organization will need to follow the ethics codes that are operative on the members. This can get quite confusing.

3. Describe some of the sources of law in the United States.Constitutions are a foundational source of law in America. A constitution establishes a government and grants certain rights directly to the citizens. Ultimately, the U.S. Constitution is the preeminent source of law in the country, but state constitutions are also very important. Statutes are also a source of law. Legislatures have the primary duty to make law in our representative democracy, and that law making is carried out by proposing and enacting legislation, known as statutes. Local ordinances can be thought of as like statutes—in fact they are both known as codified law. Administrative agencies are a source of law, because the statutes that create the agencies give the agencies the authority to draft rules and regulations. An agency makes law that regulates the conduct of the parties whose conduct comes under the jurisdiction of that agency, such as the IRS that regulates the conduct of taxpayers. Chief executives, such as the President and state governors, may issue executive orders, and those orders have the effect of law. For instance, President Bush issued an executive order in October 2001 that established the Office of Homeland Security as part of the Executive Office of the President. And, appellate courts are a source of law,

since they issue judicial decisions that serve as precedent in our common law system.

4. Explain the structure of the federal court system.The U.S. Constitution creates only one court: the U.S. Supreme Court. All other federal courts are created by acts of Congress. The structure of the federal court system is much like that of the state court systems, having a variety of trial-level courts and appellate courts. There are specialized federal courts that hear only certain types of cases, and those include the U.S. Tax Court, the U.S. Court of International Trade, and U.S. Bankruptcy Courts. Then there are 96, limited jurisdiction, federal trial courts, known as U.S. District Courts. These courts hear criminal and civil cases. There are two ways of getting a case into U.S. District Court: having a case that involves a question of federal law; and having a case that involves diversity of jurisdiction, which means a case in which the plaintiff and the defendant are from different jurisdictions. The federal system is divided into 13 circuits, 12 of which are geographical and 1 of which involves claims against the federal government, and each circuit has its own appellate court. For instance, appeals from U. S. District Courts located in Indiana take place in the Seventh Circuit Court of Appeals, since those District Courts are part of the Seventh Circuit. Circuit Courts of Appeals’ decisions are binding on that Circuit. Above the Circuit Courts of Appeals is the U.S. Supreme Court, whose authority is final everywhere in America, including the states.

5. Explain the different types of discovery.Discovery is the process in litigation that follows the pleadings and is completed before the trial, assuming there is a trial. During discovery, both parties engage in various activities to learn facts of the case from the other party and witnesses. The primary purposes of discovery are to narrow the focus of the case in preparation of a trial, and to promote settlement. The types of discovery include depositions, interrogatories, requests for production of documents, and physical and mental examinations. A deposition is the oral testimony given, under oath, by a party or witness; it is similar to one giving testimony at a trial. Depositions are used to preserve evidence and to impeach testimony given by witnesses at trial. Most depositions take place at the office of one of the parties’ attorneys, and are recorded by a court reporter, or it can be videotaped. Interrogatories are written questions submitted by one party to a lawsuit to another party. Interrogatories are designed to gather evidence, and the receiving party is required to answer them under oath, usually with the help of an attorney of paralegal. If a substantial portion of the lawsuit is based on information contained in documents, a party may request the information in those documents, which is called production of documents. If the documents sought are too large to be moved or are in permanent storage, or if moving the documents would disrupt the ongoing business of the party who is to produce them, the requesting party may be required to examine the documents at the other party’s premises. A party may also request a physical and mental examination of the other party, in cases that concern the physical or mental condition of a party. For example, if the plaintiff claims to have suffered certain head or brain injuries, the defendant could request the plaintiff to submit to a medical examination to determine the existence or extent of those injuries.

6. Explain the role of the paralegal in the appellate process.The paralegal’s role in the appellate process varies according to the nature of the case, the internal structure of the law firm, and the skill of the paralegal. If a paralegal is fortunate enough to sit through a trial, then he or she may be in the best position to analyze the trial transcript for errors in application of the procedural rules during the trial that may give rise to an appeal. By keeping track of these rulings, and reviewing the transcript, the paralegal is more capable of helping the attorney determine what matters should be appealed. The paralegal could also summarize the transcript of the trial, to help the attorney save time in spotting procedural errors and determine what legal issues need to be appealed (or responded to on appeal). Appellate-practice paralegals can also conduct legal research, since legal research and factual arguments need to be married to each other in an appellate brief. Researching rules of court, statutes, and the always-important case laws are tasks that a skilled paralegal may do as part of the appellate process. Finally, a highly skilled paralegal may write rough drafts of appellate briefs, if the attorney is so inclined.

Final Examination

True/False Questions

1. Assault is the unauthorized and harmful or offensive physical contact with someone else. (F)

2. Plaintiffs who sue for negligence must prove that defendants intended to cause harm or injury. (F)

3. Proximate cause is generally thought of in terms whether the plaintiff’s injuries were foreseeable in light of the defendant’s conduct. (T)

4. A counteroffer is made by the offeror and ends the negotiations. (F)

5. A contract must have consideration. (T)

6. Liquidated damages are what the parties agree in advance to pay in the event of breach of contract. (T)

7. A stock certificate is an example of tangible personal property. (F)

8. A bailment is a transfer of possession but not title. (T)

9. A tenancy for years must be terminated by the landlord or tenant before the term has run, or else the tenancy will continue for the same term. (F)

10. Married couples are the only persons who can own real estate in the form of tenancy by the entireties. (T)

11. An employee is not an agent of the employer unless the employee has the power to enter into contracts on behalf of the employer. (T)

12. Agency by ratification occurs when the principal accepts the unauthorized act of the agent. (T)

13. Workers’ compensation is an exclusive remedy, which means workers cannot sue their employers for damages due to employment injuries. (T)

14. Title VII of the Civil Rights Act of 1964 prohibits job discrimination based on one’s sexuality (F)

15. Liability is a disadvantage of a sole proprietorship. (T)

16. Partners have unlimited liability for the torts of the other partners carrying on partnership business. (T)

17. A corporation is a separate entity from the shareholders. (T)

18. In the United States, the first one to file the patent takes priority over the first one to invent the subject matter. (F)

19. Generally, copyright protection lasts for the life of the author. (F)

20. Internet website names can be registered and given exclusive rights. (T)

21. In a community property state, all property obtained during the marriage is split evenly during a divorce, regardless of which spouse earned the property during the marriage. (T)

22. A person who makes a will is called a beneficiary. (F)

23. Trusts may be created expressly, but they also may be imposed by law, or even by the conduct of the parties. (T)

24. Photographs may not be entered as evidence at trial, but they are still important fact-gathering devices in litigation. (F)

25. Leading questions are those that suggest the answer to be given. (T)

26. The attorney-client privilege cannot be waived. (F)

27. A legal encyclopedia is a primary source. (F)

28. Connectors are instructions to the search engine to look for documents containing combinations of words. (T)

29. A memorandum needs to present the strongest side of the issue. (F)

30. All web browsers basically provide two main screens—one to display email, and one to display content and Internet search results. (T)

Multiple Choice Questions

1. One cannot defame:

a. a dead person.b. a live person when there has been nothing untrue stated.c. without publication.d.* all of the above

2. Which of the following is not an element of negligence?

a. a duty of careb. unreasonable actionc.* punitive damagesd. injury to the plaintiff

3. Which of the following parties can be held strictly liable for the injuries caused by a defective product?

a. manufacturersb. wholesalersc.* both of the aboved. none of the above

4. A promise to make a gift is unenforceable because:

a.* it lacks consideration.b. it isn’t in writing.c. it isn’t covered by the statute of limitations.d. it isn’t an agreement.

5. The statute of frauds requires certain contracts to be in writing in order to be:

a. valid.b.* enforceable.c. executed.d. executory.

6. What of the following qualifies as goods under Article 2 of the Uniform Commercial Code?

a.* a watchb. a share of a company’s stockc. a patentd. a piece of land

7. The type of real estate ownership that allows the present owner to lose the property if a specified condition isn’t maintained is known as:

a.* fee simple defeasible.b. fee simple absolute.c. remainder.d. life estate.

8. Taking title to someone else’s real estate by treating it as your own for the required period of time and under the other required statutory requirements is known as:

a.* adverse possession.b. quiet title.c. quitclaim deed.d. squatter’s rights.

9. An owner who wants to use his or her property in a way that isn’t allowed by the current property use laws needs to seek a:

a. zoning ordinance.b. easement.c.* variance.d. warranty of habitability.

10. One of the significant factors that helps distinguish the independent contractor from the employee is:

a.* the control over the independent contractor.b. the pay of the independent contractor.c. the education of the independent contractor.d. the skill of the independent contractor.

11. Which of the following are factors to determine whether an agent’s conduct occurred within the scope of his or her employment?

a. whether the act was requested or authorized by the principalb. whether the agent was advancing the principal’s purpose when the act

occurredc.* both of the aboved. none of the above

12. Title VII of the 1964 Civil Rights Act prohibits employment discrimination based upon:

a. sex.b. religion.c.* both of the aboved. none of the above

13. Which of the following is prima facia evidence of a partnership?

a.* sharing of profitsb. sharing of managementc. sharing of authorityd. sharing of the partnership checkbook

14. A limited liability company is a(n):

a. incorporated partnership.b. unincorporated partnership.c. incorporated business entity.d.* unincorporated business entity.

15. Shareholders have the right to vote on:

a. dividends.b.* the board of directors.c. the bylaws.

d. the corporate officers.

16. To be patented, the invention must be all of the following except:

a. novel.b.* credible.c. useful.d. non-obvious.

17. Copyright protection lasts:

a. the life of the author.b. the life of the author plus a 10-year renewal period.c. the life of the author plus 50 years.d.* the life of the author plus 70 years.

18. Trademark protection lasts:

a. 10 years.b. 10 years plus one 10-year renewal.c.* 10 years plus an unlimited number of 10-year renewals.d. forever.

19. All of the following are requirements for a valid will except:

a. the testator must have testamentary capacity.b. the will must be in writing.c. the testator must sign the will.d.* the will must be prepared by an attorney.

20. If two or more testators execute the same instrument as their will, the will is called a:

a. holographic will.b. nuncupative will.c. mutual will.d.* joint will.

21. The type of trust that is created while the person creating the trust is still alive is known as a(n):

a. testamentary trust.b. implied trust.c. Totten trust.d.* inter vivos trust.

22. “You were driving under the speed limit, right?” is a(n):

a. open-ended question.

b. narrative question.c.* leading question.d. double-barrel question.

23. The paralegal or legal assistant is covered by the attorney–client privilege:

a. if the paralegal or legal assistant is also the client.b. if the paralegal or legal assistant is acting on behalf of the attorney.c.* both of the aboved. none of the above

24. A party may depose an expert:

a. under all circumstances.b.* if the expert is listed as an intended witness.c. under no circumstances.d. if the expert consents to the subpoena.

25. The law itself is known as a:

a.* primary source.b. secondary source.c. finding tool.d. none of the above

26. A citator, such as Shepard’s Citations, is a:

a. primary source.b. secondary source.c.* finding tool.d. none of the above

27. One should check on the current status of their research by:

a. checking the pocket part.b. shepardizing. c.* both of the aboved. none of the above

28. The most commonly used guide to citation form is the publication:

a.* The Bluebook.b. The Purplebook.c. The Universal Citation Guide.d. The ALWD Citation Manual.

29. In a case citation, the middle information is the:

a. volume.b.* book or series.c. page.d. publisher.

30. The main control computer that controls the connections and how the requests from each computer are handled and directed on the network is referred to as the:

a. workstation.b.* file server.c. firewall.d. Intranet computer.

Essay Questions

1. Explain the concepts of actual and proximate causation.A negligence lawsuit requires a plaintiff to prove that: 1) the defendant owed the plaintiff a duty of care; 2) the defendant breached the duty of care; 3) the plaintiff suffered injury; and 4) the defendant’s act caused the plaintiff’s injury. To say that the defendant caused the plaintiff harm actually means two things: that the defendant was the actual cause; and that the defendant was the proximate cause. Actual cause, which is sometimes called factual causation or “but for” causation, means that the plaintiff’s injury can be traced to the defendant’s conduct. Actual causation is akin to saying that the first domino that fell is the actual cause of the one-millionth domino falling—but for the first domino falling, the last one would not have fallen. Proximate cause, however, is the key to liability. To say that the defendant is the proximate cause of the plaintiff’s injury is to make a legal judgment call, and determine that the defendant should be held liable for the plaintiff’s injury.

One of the ways of looking at the doctrine of proximate cause is to examine it in light of “foreseeability.” Defendants are liable for the injuries that are foreseeable from their negligent actions. Foreseeability is a difficult concept to grasp, but juries are asked to decide on a case-by-case basis whether a plaintiff’s injuries were foreseeable from the defendant’s conduct. The most famous case on foreseeability is Palsgraf v. Long island Railroad Company (1928), and involves analyzing whether the railroad company was liable for injuries sustained by a customer that were so random and remote as to be unpreventable. Another way of looking at proximate cause is to analyze whether something completely out of the ordinary has dramatically interfered with the chain of event the defendant’s negligent conduct put into motion. Suppose the defendant negligently injures someone in a car accident, and then the injured person is being taken to the hospital in the ambulance. While on the way to the hospital, the ambulance is struck by a meteor falling to earth. Would the defendant be liable for the meteor-related injuries? No, because the meteor would be known as a superseding event, or superseding cause.

2. Explain the following: compensatory damages; consequential damages; and liquidated damages.

Non-breaching parties may sue for breach of contract, and the most common remedy is an award of money damages, although there are occasions where equitable remedies, such as specific performance, can be sought. Monetary damages are of three types: compensatory, consequential, and liquidated. Compensatory damages are intended to compensate a non-breaching for the loss of the bargain. They place the non-breaching party in the same position as if the contract had been fully performed. This is commonly known as the “benefit of the bargain.” Consequential damages are those that are foreseeable damages that arise from circumstances outside the contract. In order to be liable for consequential damages, the breaching party must know or have reason to know that the breach will cause special damages to the other party. For example, if a wholesaler fails to deliver widgets on time to the retailer, and the retailer loses business by being unable to resell the widgets, the wholesaler will be liable for the lost profits of the retailer. Liquidated damages refer to cash, or that which is “liquid.” Under certain circumstances, the parties to a contract may agree in advance to the amount of damages payable upon a breach of contract. To be lawful, the actual damages must be difficult or impracticable to determine, and the liquidated amount must be reasonable under the circumstances. An enforceable liquidated damage clause is an exclusive remedy even if actual damages are later determined to be different (i.e. more). But, if a liquidated damages provision is considered to be a penalty, rather than a reasonable measure of the damages, the liquidated damages provision is unenforceable, and the non-breaching party may then recover actual damages.

3. Explain how the scope of employment doctrine affects employer liability.The principal is not liable for all the wrongdoings of its employees, but the principle of employer liability does cast a broad net, making the employer liable for the negligent conduct of the employee that is within the scope of employment. This type of liability is based on the common law doctrine of “respondeat superior,” which means “let the master answer,” as well as the doctrine of vicarious liability. Under these doctrines, the employer is liable because of his or her employment relationship with the negligent employee, not because the employer was personally at fault. What is within the scope of employment is decided on a case-by-case basis, but there are some general tests that help determine employer liability. The frolic and detour principle recognizes that employees don’t always stay on the straight and narrow path of their employment—sometimes they detour, and sometimes they frolic. Employees are still within the scope of employment if they detour, but if the employee’s frolic and detour is substantial, then the principal won’t be liable. For example, a UPS driver who stops to see an afternoon movie at the cinemaplex, and then hits a pedestrian in the theatre parking lot is likely to be considered outside the scope of employment. The “coming and going” rule relates to the common law idea that a principal is generally not liable for injuries caused by its agents and employees while they are on their way to or from work. This rule applies even if the principal supplies the agent’s automobile or pays for the gasoline or operating expenses. Other factors that affect the scope of employment include whether the act was requested or authorized by the principal, whether the act was the kind the agent was employed to perform, whether the act occurred substantially within the time period of

employment, and whether the agent was advancing the principal’s purpose when the act occurred.

4. Explain the unique characteristics of a business corporation.Corporations are the dominant form of business organization in the U.S., generating over 85% of the country’s gross business receipts. A corporation is a separate legal entity (or legal person) for most purposes. Corporations are treated as artificial persons created by the state that can sue or be sued in their own names, enter into and enforce contracts, hold title to and transfer property, and be found civilly and criminally liable for violations of law. Corporations have certain unique characteristics, including limited liability of shareholders, free transferability of shares, perpetual existence, and centralized management. As separate legal entities, corporations are liable for their own contracts and debts. Generally, shareholders have only limited liability. They are liable only to the extent of their capital. Corporate shares are freely transferable by the shareholder, by sale, assignment, pledge, or gift, unless they are issued pursuant to certain exemptions from securities registration. Corporations may exist in perpetuity unless a specific duration is stated in the corporation’s articles of incorporation. This is because the shares, which represent ownership, are intangible and distinct from the owners. The death, insanity, or bankruptcy of a shareholder, a director, or an officer of the corporation does not affect its existence. The board of directors makes policy decisions concerning the operation of the corporation. Members of the board of directors are elected by the shareholders. The directors, in turn, appoint corporate officers to run the corporation’s day-to-day operations. Together, the directors and the officers form the corporate management.

5. Explain the process how one creates a will and changes his or her will.A will is a declaration of how a person wants his or her property to be distributed upon his or her death. The person making the will is called the testator (or testatrix, if a female), and the persons designated in the will to receive the testator’s property are called beneficiaries. Every state has a statute of wills establishing the requirements for making a valid will in that state. Those requirements include the following. A testator must have testamentary capacity, which means that the testator must have been of legal age and “sound mind” when the will was made. Sound mind generally means one understands he or she is making a will, and understands the plan of their will. Also, wills must be in writing to be valid, except for certain oral wills (nuncupative) that the law allows under limited circumstances. However, the will doesn’t have to be drafted in a certain way, or even typed, for that matter. Wills also must be signed by the testator—usually at the end of the will—and must be attested. Attestation is the process where mentally competent and disinterested witnesses (usually two or three) witness the testator signing the will, and then the witnesses sign the will, in the presence of each other. Wills can be changed up until the death of the testator. The most complete way to change a will is to revoke the will and then draft and attest a new will. Revocation may be done by obliterating the will, but a subsequent will can also serve to revoke a prior will. Wills can also be changed by the use of a codicil, which is a separate document that must be executed with

the same formalities as a will. Additionally, it must incorporate by reference the will it is amending.

6. Explain key aspects to a successful interview, including different types of questions.Paralegals and legal assistants may conduct interviews of prospective clients, clients, and witnesses. The first step in preparing for an interview is to understand the outcome desired. One of the desired outcomes in an initial interview with a new client is to instill the client with confidence in the firm and its personnel. A checklist can be a valuable tool to be certain that all the information required for a certain type of case or other legal matter is obtained during the initial interview. Setting a client at ease is also a key component to conducting an effective interview, and that can be accomplished through body language, building rapport, and explaining how the interview is protected by confidentiality and the attorney-client privilege. While conducting interviews, certain factors need to be kept in mind. In the first meeting, the paralegal must make clear that he or she is a paralegal and not an attorney. During the first few minutes of the interview, paralegals must build a relationship with the interview subjects, let them understand the purpose of the interview, and eliminate any barriers that would prevent obtaining the necessary information. Effective interviewers learn the verbal and nonverbal cues that help them understand the reasons for interviewees’ reluctance to answer questions. Leading and open-ended questions include the types of questions that can be asked in an interview. Leading questions are those that suggest the desired answer, and are generally asked by lawyers when conducing cross-examination. “You filed your taxes by April 15, didn’t you?” is a form of a leading question. Generally, leading questions should be avoided when conducting witness or client interviews since the answers seem to be drawn out of the respondent in the way the interviewer wants them. Open-ended questions are designed to give interviewees an opportunity to tell their story without the limitation of yes-or-no answers. Open-ended questions create a narrative opportunity for the witness. For example, “How has your health been since the accident?” is an open-ended question. In fact interviews, the witness should receive the opportunity for open-ended, narrative answers. Asking a question to solicit an answer that the interviewer desires may cut off information essential to the case.

7. Explain primary authority, secondary authority, and finding tools. Give examples of each.The world of legal research can be divided into three parts: primary authority, secondary authority, and finding tools. All three parts can be found in a traditional law library, and also on the Internet, using the electronic legal research sources that are available. Primary authority (also known as primary sources) is the law itself. That is to say, primary authority is law made by government. Law is made by private citizens all the time, and a contract for the lease of a car is an example of that type of law. But, the term, primary authority, refers to public law, that made by the branches of government. Congress makes statutes, which are located in statutory codes. Administrative agencies—usually part of the executive branch of government—make rules and regulations, which are located in administrative codes. The judiciary makes case law, which is

located in reporters. The judiciary also adopts court rules, which are located in federal, state, and local rules of court. Constitutions are also types of primary authority, as are executive orders and opinions of attorneys general. Secondary authority is not the law itself, but instead are writings about the law. Secondary authority can be cited in legal writing, but it shouldn’t be cited in place of applicable primary authority. Types of secondary authority include legal dictionaries (Black’s), legal encyclopedias (C.J.S.), treatises (Wigmore on Evidence), Law Reviews (Yale Law Review), Textbooks (Legal Ethics, by Kauffman), and legal periodicals (ABA Journal). Finding tools are really important, but don’t qualify as primary or secondary authority. Finding tools allow a researcher to locate the law, or to update the status of the law that’s been found. A digest (West’s Indiana Digest) is an example of a finding tool, allowing one to find case summaries, organized by West’s 450 digest topics. Shepard’s Citations is another type of a finding tool. Shepard’s books allow a researcher to check to see if the law that has been found is still “good law.”

8. Explain how a paralegal or legal assistant would use the Internet in a law office.The Internet has become such a powerful tool in the law office in the last decade, and paralegals and legal assistant use the Internet more than any other member in the law firm. Paralegals communicate by using email, which is quicker and cheaper to send than regular mail. Although there are legitimate concerns over the privacy (or lack thereof) associated with email messages, they can be encrypted. Encryption technology permits a computer user to basically put a lock around its computer information to protect it from being discovered by others. Encryption software lets computer users scramble information so only those who have the encryption code can enter the database and discover the information. In addition to sending messages by email, documents can be attached as files to email. Legal documents can be filed electronically. A number of courts have established procedures for the electronic filing of pleadings. Each court is free to set up its own rules and procedures and must be consulted before attempting to use this service. The IRS and some states have combined in a joint effort to allow electronic filing of both the federal and state individual income tax returns in one step. Legal research can be done on the Internet, using services such as Westlaw or Lexis (which are subscription services), or Findlaw (which is a free, legal search engine). Other types of research that needs to be done in a law office can be done through the Internet. Governmental information and files can be accessed and downloaded, using Adobe Acrobat Reader, for instance. As well, all kinds of information that might be helpful to a client’s case might be available on the World Wide Web, using search engines, such as Google, Alta Vista, and Yahoo!. In fact, one can access Internet versions of the yellow pages and white pages, or reverse phone directories.