Question 1
Regarding payment of legal services lawyers may select from one of the four arrangements of payment which comprise of rates divided according to an hourly, contingency, flat and retainer basis with a contingent, flat and retainer payment arrangement as the most commonly used. With contingency payment arrangement entailing an agreement between the client and the lawyer for taking of a specified percentage of the settlements; that are monetary as well as receiving damages payment from a case. These types of fees are normally charged in civil lawsuits instance in the case of medical malpractice as well as litigation in personal injury with the fee normally taking 33 percent but with variations according to the case of the state legislation. On the other hand for issues of cut and run, the fee that is normally charged is a flat rate such as in cases for instance preparation of a living well or a simple bankruptcy. Although this fee is normally laid out at the beginning of the legal agreement, there is a need to ensure that the fee covers where necessary and does not provide coverage where it is not necessitated for instance filing faces tend not to fall in the category of a flat fee. Furthermore, retainer is another form of legal client payment with this payment taking the form of a lump sum that is paid upfront upon which the law moves to make a deduction on the hourly expenses with often the retainer reserving a specified amount of hours or services from a lawyer. This is so as to provide strengthening of the relationship in the duration of the case between the lawyer and client with existence of several forms for retainers and schedules of payment.
Question 2
The English definition for the Latin term “stare decisis” refers to "stand by things as decided" which is mainly a doctrine of precedent with courts citing “stare decisis” in issues that have been previously been availed to the court as well as an order that has already been issued. There is a general acceptance that courts adhere to the past ruling although there is not universal agreement to this. The overall principle is that in common legal systems with cases that are similar a decision needs to be made so as to provide a similar and predictable outcome with the precedent mechanism being the goal achieved. Judges use this concept in cases where the initial rule is based on making of a decision by a superior court on an earlier decision in which case the precedent is binding with lower courts being obligated to adhere.
Question 3
According to definition alternative dispute, resolution refers to any procedures or a collective application of procedures that are introduced voluntary as a measure by parties involved in a dispute or disagreement. The most commonly applied approach in alternative dispute resolution is mediation in use with conciliation as an existing possibility with the involvement of a third party within the procedures as a neutral party for encouragement and facilitation with no imposition in the search for resolving the dispute. The advantage of using alternative dispute resolution is that it allows for a speedy settlement procedure that translates into reduced costs and time that would not be the case with the involvement of courts of law. The advantage is that is leads to outcomes that in general offer more satisfaction to involve parties in contrast to the case with the involvement of courts of law. Furthermore, this form of settlement is private with the signing of confidentiality agreements that enable the parties to be limited from interest that is unwanted from unconcerned parties.
Question 4
Defamation is the use of false statements to communicate with the intention of causing harm of reputation to a target individual or group of people as well as organizations or any form of entity. In common law, the constitution of defamation rests on the claim being general as false when being made to the defamed person with some jurisdiction providing a distinction from slander or libel. On the other hand trade slander is a form of defamation that is especially targeted and directed towards a product or business with the plaintiff providing proof for consideration that includes material that shows the statement or fact as being false. These in addition to showing g the financial harm or damaged caused to the financial institution or business owner. Furthermore, deceit refers to the action of misleading of an individual that is prudently original through issuing of information that is false with deceit being said to have happened when there an individual recklessly or knowingly misrepresents a fact to another person.
Question 5
Torts in definition as civil wrong that can be offered redress in the form of award of damages in recognition of the law upon the grounds of a lawsuit with these wrongs being an outcome of injury or constituted harm on the basis of a claim for the party that is injured. Certain forms of torts are punishable with imprisonment with the primary objective being the provision of relief to damages that are incurred as deterrence to others for committing the same harm. Take for instance the Haig v. Bamford case in which instance negligence was the tort as a result of the actions of the chartered accountants. This is because in their preparation of financial statements they parties intentionally placed defects and yet the investor heavily relied on these statements that led to the loss.
Question 6
The items that can never be assumed by the court are meant to be excluded in a contract even though they are not stated expressing as observed in instances more so among business people that have a general tendency to have reliance of the interpretation of the court of terms that have been implied. In this case, the good contract will normally be very lengthy such that any possible material items are documented within the contract. However, in cases where they is no possibility of coverage of every detail in its possibility then the lawyer can present an appeal based on terms that are implied so as to provide force of intention of the contract.
Question 7
A contract as a legal binding agreement in the normal scenario as one enters into an agreement with another individual the expectation is held of fulfillment of the entire terms of the contract. In possible case where the contract is deemed valid it can be treated as enforceable in a legal perspective and as such be treated as being against public policy. Such attributes include lacking capacity when all or some parties lack the understanding of the precise terms in the agreement or in cases of coercion where an individual is under threat to make an agreement. The outcome of such a contract is to be deemed null and void by the court as the general ideal is the prevention of persons that are unscrupulous with the aim of taking advantage of the people that lack the capability of making decisions that are reasoned.
Question 8
Misrepresentation in general concerns false statement of fact with the impact being to induce an individual into a contract with fraudulent misrepresentation being recognition of one of these variations of misrepresentations in contract law. Fraudulent misrepresentation comprise of an individual making a false representation especially when the misrepresentation is key to the transaction. As such the remedy would be suing in civil courts as the offense is known as a false pretense that carries reasonable jail time. Innocent misrepresentation; on the other hand, occurs when a party makes misrepresentation that is material concerning the contract with grounds that are reasonable to their notion of their statement being true with the remedy being a claim within the contract known as contract rescission that restores the contract to the original state with cancellation of all previous made positions. Negligent misrepresentation on the other entails when a party indirectly presents false information known to be false regarding the representation of something with no grounds of reason for it being true. As such the remedy would require civil courts to treat it as rescission and cancel all previous made positions and restore the original contract terms.
Question 9
Duress is defined as a situation where an individual performs an act as an outcome of violence, pressure or threat against the person in coercion to perform an act that would not have been performed by that person otherwise. For example, the Barton v Armstrong [1976] AC 104 case were Armstrong makes a threat to kill Barton if he does not sign a contract. On the other hand undue influence entails a doctrine that is equitable with the involvement of an individual in the form of taken advantage in positioning over another person in power, for example, in the case of Johnson v. Buttress (1936) 56 CLR 113. On the other hand, unconscionability entails a contract law doctrine in form of a description of terms that are unjust in extreme or with favors that is one sided overwhelmingly to a party with bargaining power that is superior contrary to good conscience for example in the case of Williams v. Walker-Thomas Furniture Co (1965) 350 F.2d 445.
Question 10
Specific performance in definition concerns the order by a court that requires performance by a party of a certain action that is normally stipulated within the contract as an alternative to awarding of damages. It is classified as an equitable remedy and it’s normally applied as a form of injunctive relief that concerns information that is confidential or actual property. The limitation to specific performance is that while there is a tendency of the charges being awarded in breach of contract as an intention to place the plaintiff in a position of the agreement had it been fulfilled. The expectation of the damages ensures measures that are rough in compensation for failure to keep the promise. On the other hand, induction entails the equitable remedy in the structure of a court order that needs a party to refrain from in the performance of certain actions. In case of failure by the party to comply with the injunction they are faced with criminal or civil penalty and can pay damages or receive sanctions with certain cases of breaches or injunction in consideration as criminal offences that are serious with a merit of arrest and a possibility of a prison sentence.
