Acronyms Flashcards
Employer liable for employee intentional torts
AND
- Specifically Authorized
- Naturally occurring friction
- Desire serve employer
Employer liable for independent contractor
EID
- Estoppel
- Inherently dangerous activity
- Non-delegable Duty
Presumed partner if received shares, unless for:
DIRRSS
* Debt
* Interest/loan charge
* Rent
* Retirement/annuity
* Salary
* Sale of goodwill of business
Events triggering dissociation
E5BDPT
* Express will
* Event in Pship agreement
* Expulsion per Pship agreement
* Expulsion by unanimous vote if
- Unlawful continue w/ P; or
- P transfer all/substant all interests
* Expulsion by court
* Bankruptcy
* Death/incapacity
* Personal rep appt
* Termination entity partner
When court will pierce corporate veil
FACC
* Prevent Fraud
* Corp. is SH’s Alter ego
* Failure to follow Corporate formalities
* Inadequate Capitalization at inception
Abstention doctrines
BCPY
* Burford: interfere w/ complex reg scheme
* CO River: parallel state/fed actions pending
* Pullman: unsettled state law + case pend
* Younger: interfere w/ state judic proceeding
Compulsory counterclaim
CON
* Compulsory;
* Arises from same transaction/Occurrence as opposing party’s claim; and
* Does not require adding New party over whom court cannot acquire jurisdiction.
Same transact/occur (counter/cross claim)
LRELR
* Largely same issues of fact/Law;
* Res judicata would bar subsequent suit;
* Evid substantially same to support/refute both; and
* Logical Relationship between claims.
Permissive joinder
JOQS
* Joint and several relief asserted, or same transaction/Occurrence;
* Common Question of law/fact; and
* SMJ for each claim.
Required joinder
CILI
* Cannot grant Complete relief among existing without absent party;
* Absent claims Interest in action that would be Impaired/Impeded by absence; or
* Absence creates substantial risk to existing of multiple Liability/Inconsistent obligations.
Permissive intervention
TLC
* Timely; and either
- Common question of Law/fact with main action; or
- Conditional right to intervene in fed statute.
Intervention as of right
TIIR
* Timely;
* Interest in subject matter;
* Interest would be Impaired d/t action; and
* Non-party not adequately Represented by existing.
Class certification
HIAIAO ID PS
* Separate actions create risk of
- Harm to Interest of Absent members; or
- Inconsistent Adjudication for Other members.
* Party opposing acted/refused on grounds applying so generally to class that Injunctive or Declaratory relief appropriate to whole; or
* Common question law/fact Predominates over individual claims and class action is Superior method of adjudication.
Rule 11 certifications to court
PFED
* Presented for proper purpose;
* Claims, defenses, legal contentions warranted and non-Frivolous;
* Factual contentions have Evidentiary support or will likely after further discovery; and
* Denials of factual contentions warranted/reasonably based on lack of info.
Discovery of attorney work product
SNHU
* Substantial Need exists; and
* Substantial equivalent cannot be obtained without Undue Hardship.
Exceptions to appeal from only final judgment
54-SCC-WPC
* 54(b)
* Statutory Exceptions
* Certified Appeal Exception
* Collateral Order Doctrine
* Writs of Mandamus/Prohibition
* Pendant Appellate Jurisdiction
* Certification of Class Action
Discrim. impact under Negative Comm. Clause
NCC = NPP
* Narrowly tailored to achieve legitimate, non-Protectionist state objective (no less-discriminatory means available); and
* State/local gov is market Participant.
Balance test for Penn-Central takings
EIEIC
* Economic Impact of regulation on claimant;
* Extent of Interference w/ owner’s primary expectation for use of property; and
* Character of gov action.
Termination of offer before acceptance
LDRRS
* Lapse of time to accept;
* Death/incapacity of either party;
* Revocation by offeror;
* Rejection/counter-offer by offeree; or
* Supervening illegality.
Irrevocable offers to contract
MODS
* Merchant’s Firm Offer;
* Option contract;
* Detrimental reliance by offeree; and
* Start performance on unilateral contract.
Duty to disclose (misrep/concealment in K)
AFEM
* Active concealment of material fact occurs;
* Fiduciary relationship exists;
* Necessary to correct Earlier mistake; or
* Necessary to correct past Misleading statement.
Exceptions to Parole Evidence Rule
CDPV
* Correct Clerical error/typo
* Establish Defense against formation
* Supplement Partially integrated writing
* Interpret Vague/ambiguous terms.
Disclaim Implied Warranty of Fit for Partic Purp
WACC
* Conspicuous Writing;
* “As is” type language;
* Waiver if certain defects can be reasonably discovered upon inspection by buyer; or
* Course of dealing, performance, or usage of trade.
Contract remedies
CELL CIMPLRR
* Cover damages (UCC)
* Expectation damages
* Lost profits (UCC)
* Loss-in-value (UCC)
* Consequential
* Incidental (UCC)
* Market
* Punitive
* Liquidated
* Restitution
* Reliance
Expectation damages
CFCU
* Caused by defendant (actual);
* Foreseeable (proximate);
* Certain; and
* Unavoidable.
Consequential damages
FCK
* Foreseeable at Formation;
* Reasonably Certain; and
* Defendant Knew/reason to know of special circumstances.
UCC seller’s remedies/damages
WCC LIIMBR
* Withhold delivery
* Cancel
* Cover damages
* Lost profits
* Insolvent buyer; stop delivery
* Incidental damages
* Market damages
* Breach by buyer; stop delivery
* Replevy identified goods
Malice aforethought
I3R
* Intent to kill;
* Intent to inflict great bodily injury;
* Intent to commit inherently dangerous felony under Felony Murder Rule; or
* Reckless disregard of extreme risk to human life.
Exceptions to warrant requirement
CAPE AS IF
* Consent
* Automobile exception
* Plain View Doctrine
* Exigent Circumstances
* Incident to Arrest
* Special needs per SCOTUS
* Inventory search
* Stop and Frisk
Exigent circumstances for warrant exception
IFEA
* Prevent Imminent destruction of evidence
* Hot pursuit of Felon and evidence in plain view
* Evanescent evidence (disappear/dissipate)
* Emergency Aid exception
Exceptions to double jeopardy
HRB MSR
* First trial ends in Hung jury
* Original trial terminated at defendant’s Request but not acquittal on merits
* Defendant Breaches plea agreement
* Manifest necessity to end original trial
* Defendant consents to Sever charges into Separate trials
* Retrial after successful appeal, unless based on insufficient evidence to support verdict
Rule 403(b) excl. – danger outweigh prob val
CCMPUT
* Confusing jury;
* Needlessly cumulative;
* Misleading jury;
* Unfair prejudice;
* Undue delay; or
* Wasting time.
Best Evidence Rule exceptions
LD PRN
* Original Lost/Destroyed (not by bad faith of proponent);
* Reliable Duplicate;
* Cannot be obtained by available judicial Process;
* Not closely Related to controlling issues; or
* Not produced after proper Notice to party in control and against whom would be offered.
Expert witness’s reliable principles/methods
STEAP
* Standards and controls;
* Testability;
* Error rate;
* General Acceptance in field; and
* Peer review and publication.
Prior bad acts admissible (non-propensity)
PIMI OK CPS AMA
* Preparation
* Identity
* Motive
* Intent
* Opportunity
* Knowledge
* Common Plan or Scheme
* Absence of Mistake/Accident
Impeachment methods
ABCD 3-prior
* Ability to observe, remember, or relate accurately
* Bias
* Character for truthfulness
* Hearsay Declarant
* Prior inconsistent statements
* Prior convictions
* Prior bad acts (specific instances of conduct)
Hearsay exclusions/exceptions
POW-C3P M2F BEDS
* Statement by Party Opponent
* Prior Witness statement
* Co-Conspirator admissions
* Present sense impression
* Past recollection recorded
* Public records
* Statements for Medical diagnosis/treatment
* Statements of Mental/emotional/physical condition
* Former testimony
* Business records
* Excited utterance
* Dying Declaration
* Statements against interest
Declarant unavailable to testify
PRISM
* Exempt from testifying d/t Privilege;
* Refuses to testify despite court order;
* Illness or death prevents testifying;
* Beyond reach of Subpoena and cannot procure attendance by reasonable means; or
* Memory is problem (testifies does not remember).
Grounds for divorce
ANDAC
* Adultery
* No-fault
* Habitual Drug/alcohol use
* Abandonment for time set by statute
* Cruel and inhuman treatment
Factors equitable distribution marital property
DEALS IS
* Duration of marriage;
* Earning capacity;
* Age of spouses;
* Lifestyle;
* Separate property of each;
* Income; and
* Services provided by spouse who stayed home or put career on hold.
Factors to determine spousal support amount
MAD SAT
* Money/financial resources of seeking party;
* Age and physical/emotional condition of seeking party;
* Duration of marriage;
* Standard of living established during marriage;
* Ability of spouse paying support to meet own needs while paying; and
* Time necessary for seeking spouse to obtain appropriate job (including time for education/training).
Child custody jurisdictions (UCCJEA)
SHT MN
* Significant Connection
* Home State
* Temporary Emergency
* More Appropriate Forum
* No Other State
Four unities – joint tenancy
TTIP
* Received at same Time
* Acquired Title in same instruments
* Equal Interests
* Rights to equal Possession
Enforce benefit of real covenant
WIT+V
* In Writing satisfies statute of frauds;
* Intent for covenant to run with land;
* Touches and concerns land (increases value/usefulness); and
* Vertical privity between succeeding parties.
Enforce burden of real covenant
WIT+V+H+N
* In Writing satisfies statute of frauds;
* Intent for covenant to run with land;
* Touches and concerns land (increases value/usefulness);
* Vertical privity between succeeding parties;
* Horizontal privity between original parties; and
* New owner had Notice.
Enforce benefit of equitable servitude
WIT
* In Writing satisfies statute of frauds;
* Intent for covenant to run with land; and
* Touches and concerns land (increases value/usefulness).
Enforce burden of equitable servitude
WIT+N
* In Writing satisfies statute of frauds;
* Intent for covenant to run with land;
* Touches and concerns land (increases value/usefulness); and
* New owner had Notice.
Termination of easement
TIE CRAMP
* Termination of necessity that created it;
* Involuntary destruction of servient estate;
* Estoppel;
* Condemnation of servient estate;
* Written Release;
* Abandonment;
* Merger; or
* Prescription.
Adverse possession
EACH-O
* Exclusive;
* Actual;
* Continuous for statutory period;
* Hostile and under claim of right; and
* Open and notorious.
Protected classes under Fair Housing Act
FORRDS
* Familial status (except 55+ community)
* National Origin
* Race/color
* Religion
* Disability
* Sex
Exemptions to Fair Housing Act
PROS
* Private clubs that restrict occupancy to members
* Religious organizations
* Owner-occupied buildings with no more than 4 units occupied by persons living independently of each other
* Single-family houses sold/rented by owner without agent, who owns 3 or less homes at time
Types of collateral
ICE CAP’D
* Inventory
* Consumer Goods
* Equipment
* Chattel Paper
* Accounts
* Proceeds
* Deposit accounts
Transfers free of security interest
ACC BS
* Secured party Authorizes disposition free of security interest
* Consignment
* Consumer-to-consumer rule
* Buyer in the ordinary course of business
* Transfer and Shelter Principle
Intentional torts
CABFIL
* Trespass to Chattels
* Assault
* Battery
* False imprisonment
* Intentional Infliction of emotional distress
* Trespass to Land
Privileges (defense to intentional torts)
SPAIN CD
* Self-defense/defense of others
* Defense of Property
* Privilege to Arrest
* Detain for Investigation
* Necessity
* Recapture of Chattels
* Discipline of children
Exceptions to lack of duty to act/render aid
LPRS
* Imposed by Law
* Defendant put plaintiff in Peril
* Defendant undertakes to Rescue plaintiff
* Special pre-existing relationship
Types of trusts
CRIP DIRTS
* Charitable
* Revocable
* Irrevocable
* Pour-over provision
* Discretionary
* Illusory
* Resulting
* Testamentary
* Support
Purposes of charitable trusts
PEHOG
* Relief of Poverty
* Advancement of Education/religion
* Promotion of Health
* Other purposes benefitting community
* Governmental/municipal purpose
Exceptions to spendthrift interests
CSING
* Order for Child/Spousal support
* Self-settled (revocable) trust
* Judgment creditor provided services to protect B’s Interest in trust
* Creditor furnished Necessities
* Government claim (lien)
Exceptions to trustee self-dealing (duty loyalty)
CC TOM
* Court approved
* B Consented, ratified, or released T of liability
* Terms of trust authorized
* Occurred before person became T
* Missed statute of limitations by B
Modification of trusts (UTC)
S, S+B, B+C, FUC VNNI
* S while alive, by later will/codicil, or other method manifesting clear and convincing evidence of intent (unless trust instrument provides otherwise).
* S+B consent
* Bs consent + Court determines modification not inconsistent with trust purpose.
* Will Further purposes of trust because of Unanticipated circumstances
* Cy pres doctrine applies
* Court determines Value of trust property insufficient to justify cost, and Notice to all Bs.
* Necessary to conform to S’s Intent/tax objective.
Termination of trusts (UTC)
S+B, B+C, FUUC RIP
* S+Bs consent
* Bs consent + Court determines continuance unnecessary to achieve any purpose.
* Furthers purpose due to Unanticipated circumstances.
* Unlawful, contrary to public policy, or impossible to achieve.
* Cy press applied to terminate
* Revoked or expired pursuant to terms
* Insufficient value to justify continued administration
* Material Purpose achieved
Prima facie case of undue influence (wills)
WAP-R
* T had Weakness that made susceptible to influence;
* Wrongdoer had Access and opportunity to influence T;
* Wrongdoer actively Participated in drafting will; and
* Unnatural/unexpected Result.
Common law presumption of undue influence
CAR
* Confidential relationship existed between T and wrongdoer;
* Wrongdoer Actively participated in drafting will; and
* Unnatural Result occurred.
Conditions on approval of permit
PERmIt:
Essential nexus
Individualized determination
Roughly proportional
Warranty: covenants of title
RES FEW
Present
- Right to convey
- Against Encumbrances
- Seisin
Future
- Further assurance
- Quiet Enjoyment
- Warranty
Trustee’s duty of loyalty
SIC
- Self-dealing
- Impartiality
- Conflict of interest
UIFSA bases for PJ in child support
CRAP POPS
Consent/waive
Reside in state w/ kid
Act/direct where reside
Prenatal expense/support
Putative father registry
Other Constitutional
Personal service
Sex/conceived
Affirmative defenses
PASSED CLIF WRRL
Payment
Assumption of risk
SoF
SoL
Estoppel
Duress
Contributory negligence
Lack of consideration
Illegality
Fraud
Waiver
Release
Res judicata
License
Contract performance issues
WARD 3rd BIG CAR AS IF
- Warranties
- Anticipatory Repudiation
- Divisible performance
- 3rd parties
- Breach (major/minor and perfect tender)
- Impossibility
- Good faith/fair dealing
- Condition precedent
- Acceptance/Revocation
- Accord/Satisfaction
- Impracticability
- Frustration of purpose
Criminal Defenses
DIM ID
- Duress
- Insanity
- Mistake of law/fact
- Intoxication
- Defense (self/others)
Contract Defenses
DRUM IIMU
- Duress
- Restraint of trade
- Undue influence
- Mistake (unilateral/mutual)
- Illegality
- Incapacity
- Misrepresentation
- Unconscionability
