Memory tricks for legal terminology

Q: What does BARD vs. POE stand for and explain the burdens of proof?

A: BARD (Beyond A Reasonable Doubt) vs. POE (Preponderance Of Evidence): the two main standards of proof. POE (civil standard): more likely than not — greater than 50% probability. The plaintiff must tip the scales just slightly in their favor. Used in all civil litigation. Some civil matters require clear and convincing evidence (intermediate standard, ~75% certainty): fraud, punitive damages, will contests, civil commitment, termination of parental rights. BARD (criminal standard): the prosecution must eliminate all reasonable doubts — not all possible doubts, but doubts based on reason. Roughly 95% certainty. The highest standard in law. Why higher? Because liberty and stigma of criminal conviction are at stake. The presumption of innocence means the defendant need not prove anything — the burden is entirely on the prosecution. BARD derives from the 14th Amendment's due process clause (In re Winship, 1970). Affirmative defenses: in many jurisdictions, once the prosecution proves the crime beyond a reasonable doubt, the defendant bears the burden of proving affirmative defenses (insanity, self-defense) by a preponderance of evidence.

Q: What does HISC stand for and explain the key Latin maxims in law?

A: HISC (Habeas corpus, In rem, Sua sponte, Certiorari): key Latin maxims. Habeas corpus (you shall have the body): a writ requiring the government to bring a prisoner before the court to determine whether the detention is lawful. The great writ of liberty — basis for challenging unlawful imprisonment. In rem (against the thing): jurisdiction over property or status rather than a person — e.g., forfeiture proceedings, probate, admiralty. Sua sponte (on its own motion): a court acting on its own initiative without being asked by either party — e.g., dismissing a case for lack of jurisdiction sua sponte. Certiorari (to be informed): the writ by which higher courts (especially the US Supreme Court) agree to review lower court decisions. SCOTUS grants certiorari by the Rule of Four — four justices must agree to hear the case. Other key terms: Res ipsa loquitur (RIL — the thing speaks for itself): in negligence, allows inference of negligence from the nature of the accident (e.g., surgical instrument left in patient). In loco parentis (in place of a parent): legal authority to act as a parent.

Q: What does TACT stand for and explain the federal and state court systems?

A: TACT (Trial courts, Appellate courts, Courts of last resort/SCOTUS, Two parallel systems): Two parallel court systems operate in the US. Federal courts: US District Courts (trial level, 94 districts), US Courts of Appeals (13 circuits, 3-judge panels for most cases), US Supreme Court (9 justices, discretionary review via certiorari — accepts about 80 cases per year out of 7,000 petitions). Federal courts hear: federal questions (claims under federal law, Constitution, treaties), diversity jurisdiction ($75,000+, complete diversity between parties), exclusive federal matters (bankruptcy, patents, securities law). State courts: trial courts (may be divided into limited and general jurisdiction), intermediate appellate courts, state supreme courts. State courts hear: vast majority of all litigation — contracts, torts, family law, property, criminal law. Appeals from state courts to SCOTUS: only when a federal constitutional or statutory question is raised. Concurrent jurisdiction: both federal and state courts can hear diversity cases and some federal claims.

Q: What does STARE stand for and explain how precedent works in the common law system?

A: STARE (Stare decisis — let the decision stand): the doctrine that courts follow prior decisions on the same legal issue to promote predictability, fairness, and stability in the law. Binding (mandatory) precedent: decisions from a higher court in the same jurisdiction must be followed by lower courts. A federal district court must follow its circuit's Court of Appeals decisions. All courts must follow US Supreme Court decisions on federal law. Courts are NOT bound by decisions from other jurisdictions (these are persuasive, not binding). Persuasive authority: decisions from other jurisdictions, secondary sources (treatises, law review articles), and lower court decisions within the same jurisdiction that the court may consider but need not follow. Overruling: a court can depart from its own precedent — the Supreme Court can overrule itself (Brown v. Board overruled Plessy; Dobbs overruled Roe). Lower courts cannot overrule higher court decisions. Distinguishing: a court can decline to follow precedent by finding the facts are materially different — allowing flexibility within the common law system. This is called distinguishing the case.

Q: Explain the adversarial system and how courts apply IRAC (Issue, Rule, Analysis, Conclusion).

A: The adversarial system: the Anglo-American legal tradition where opposing parties present their best arguments, evidence, and legal theories to a neutral decision-maker (judge and/or jury). The theory: truth is best discovered through vigorous competition between opposing sides. Contrasts with the inquisitorial system (civil law countries — France, Germany) where judges actively investigate and question witnesses. IRAC (Issue, Rule, Analysis, Conclusion): the standard framework for legal analysis. Issue: identify the precise legal question (e.g., did the defendant's conduct constitute breach of contract?). Rule: state the applicable legal rule (e.g., breach occurs when a party fails to perform a contractual obligation without legal excuse). Analysis: apply the rule to the specific facts — this is where the work is done. Address each element, discuss both sides, deal with ambiguities. Conclusion: answer the issue question. FIRAC adds Facts at the beginning. Used in law school exams, legal memos, and briefs. The most important skill in law: identifying the correct issue and accurately applying the rule to the facts.