§2.4 Determining Your Presumptive Positions

Questions and Answers

What is the presumptive position of the plaintiff in a case concerning specific performance?

They must argue against the appropriateness of specific performance.

They must argue that specific performance is an appropriate remedy. (correct)

They must remain neutral regarding specific performance.

They have the discretion to choose any remedy.

In a personal injury case based on negligence, what is the presumed position of the defendant?

Presumptively against the admissibility of their own evidence.

Presumptively for a high standard of proof.

Presumptively against the existence of jurisdiction. (correct)

Presumptively for the existence of jurisdiction.

How do the roles of the parties in the adversary system affect their discretion?

They can freely switch positions during the trial.

Their discretion is limited to their chosen legal strategy.

Their positions on issues are not discretionary. (correct)

They have significant discretion in the choice of legal principles.

What is an example of a presumptive position held by a plaintiff in a constitutional case?

For a demanding standard of judicial review. Signup and view all the answers

Which statement reflects the adversary system's view on the plaintiff's and defendant's evidence?

The plaintiff is for the admissibility of their own evidence. Signup and view all the answers

What aspect of the adversary system gives the advocate the most control?

Deciding what legal principles are relevant to the case. Signup and view all the answers

What is the plaintiff's presumptive position in a contract dispute?

There was a contract Signup and view all the answers

Which element is NOT necessary for establishing a valid contract?

Written documentation Signup and view all the answers

What position must the defendant take regarding the existence of a contract?

There was no contract Signup and view all the answers

If the plaintiff fails to argue that there was an offer, what is the likely outcome?

They cannot win the case Signup and view all the answers

Which of the following strengthens the plaintiff's position in a contract dispute?

Demonstrating the existence of offer and acceptance Signup and view all the answers

What must the plaintiff argue regarding consideration in their case?

The contract was supported by consideration Signup and view all the answers

In a case where the plaintiff seeks specific performance, what is necessary?

The contract must be supported by consideration Signup and view all the answers

Which of the following is a presumptive position of the defendant concerning the contract?

There was no acceptance of the offer Signup and view all the answers

Study Notes

Presumptive Positions in Contract Disputes

In a contract dispute, the plaintiff's alignment is as the party initiating the claim, requiring them to argue for terms leading to the defendant's liability.
Essential for the plaintiff is the assertion of the existence of a contract, a foundational requirement for a successful claim.
The defendant's corresponding position is the denial of any contract, which they must maintain throughout the case.

Elements of a Valid Contract

Valid contracts typically include three key elements: offer, acceptance, and consideration.
The plaintiff must argue:
- An offer was made.
- The defendant accepted the offer.
- There is valid consideration supporting the contract.
If the plaintiff fails to establish any of these elements, they risk losing the case.
The defendant's presumptive counterarguments include:
- No offer was made.
- Any potential offer was not accepted.
- There is no valid consideration.

Remedies in Contract Disputes

If seeking specific performance, the plaintiff must argue for its appropriateness.
Conversely, the defendant is tasked with arguing against the appropriateness of specific performance.

General Presumptive Positions in Legal Cases

In negligence cases, the plaintiff is always for jurisdiction while the defendant is against it.
Plaintiffs typically seek the admissibility of their evidence while opposing the admissibility of the defendant’s evidence.
Defendants are generally the reverse, arguing against their own evidence’s admissibility while supporting the plaintiff’s.
In constitutional cases, plaintiffs aspire for a higher standard of judicial review, while defendants argue against it.

Mechanical Process of the Adversary System

The adversary system necessitates a structured approach, limiting the advocate's discretion regarding positions.
Party alignment is fixed and adheres to the principles of the adversary framework.
The only flexibility for advocates lies in determining relevant legal principles, but positions regarding liability remain non-discretionary based on party alignment.