Adaptibar/MBE Missed Flashcards
Do courts have the power to order involuntary dismissal on their own motion if:
(1) the plaintiff fails to comply with the court’s order or
(2) fails to prosecute their claim?
Yes
An involuntary dismissal for failure to prosecute will operate as an adjudication on the merits.
What is required to depose a corporation as a named party?
(1) name the corporation/entity
(2) describe with reasonable particularity the matters for examination
(3) The corporation/entity must designate one or more officers, who consent to testify on the corporation’s behalf
(4) The corporation may set out the matters of which each person designated will testify too.
What is a protective order and what can it be issued for?
Protective orders generally deal with a broad range of materials. Protective orders may be issued to prohibit an entire line of questioning or examining a particular witness.
Grant or Deny Motion for Direct Verdict on Res Ipsa Loquitur:
For Plaintiff Motion?
For Defendant?
Plaintiff Motion: ALWAYS DENY
Defendant Motion:
Deny –> P established RIL
Grant–> If P failed to establish RIL and failed to present other evidence of breach
Difference between intervening and superseding force?
Intervening = Forseeable
(medical malpractice, rescuer negligence, protection/reaction forces to D’s negligent conduct, diseases/accidents caused by the original injury caused by D)
Superseding =Unforseeable
What is the covenant of warranty?
When is it breached?
When is is not breached?
Grantor agrees to defend on behalf of the grantee to any lawful or reasonable claims of title by a third party and to compensate the grantee for any loss sustained by the claim of SUPERIOR title.
The warrant is NOT breached until a third party interferes with the possession of the grantee.
The covenant is NOT breached by the grantor’s refusal to defend the title against a WRONGFUL claim or eviction by a third party.
Following a jury verdict, if a party fails to move for either a renewed judgment as a matter of law or for a new trial based on the insufficiency of the evidence, is the party precluded from raising the question of evidentiary sufficiency on appeal to support either judgment as a matter of law or a new trial?
Yes.
Does using a non-testifying co-defendant’s confession against an accused criminal defendant permissible under the confrontation clause?
No, it violates the confrontation clause.
A Defendant must be provided the opportunity to cross examine the co-defendant about their confession.
Can you tack emotional distress damages to a tort damages claim based on physical injury?
Yes
What does procedural due process protect?
Requires that the state act with adequate or fair procedures when depriving a person of LIFE, LIBERTY, OR PROPERTY.
Differentiate when public employment is a property interest under procedural due process.
Property includes personal belongings, chattel, realty, and PUBLIC EMPLOYMENT.
Public Employment IS a property interest when there is a state statute/ordinance that creates a public employment contract or some clear practice/mutual understanding that an employee can be terminated ONLY for CAUSE
Public Employment is NOT a property interest when the employee holds the position “AT WILL”
Interpleader vs Impleaderv. Intervention
Interpleader: Requiring two or more adverse parties to litigate amongst themselves a claim of legal rights to a specific piece of property
Impleader: Defendant bringing in a third party
Intervention: Non-party absentee brings themselves toa. case
Strict LIability: Product Liability Elements
(1) D is a MERCHANT
(2) product is DEFECTIVE
(3) the product was NOT SUBSTANTIALLY ALTERED
(4) P was using a FORESEEABLE USE of the product at the time of injury
Damages must be physical injury or property damages NOT ONLY ECONOMIC LOSS
Disclaimers are ineffective
Strict liability: Product Liability Defect Types (Explain each)
(1) Manufacturing defect: Departs from the intended design
(2) Design Defect –> Feasible Alternative Test:
P must show product could have been deisgned in a manner that is 1. Safer, 2. Practical, AND 3. Economically feasible
(3) Information Defects: Hidden risks without adequate warning or information
What is the difference in what a tenant is entitled to between a full and a partial condemnation?
Full Condemnation: Liability of rent is extinguished and there is no longer a leasehold estate
Partial/Temporary Condemnation: Tenant is NOT discharged from paying rent but is entitled to compensation = share of the condemnation award
When does the public policy exclusion for settlements and negotiations kick in?
- Claim or indication that a claim will be made
- The Claim must have been in dispute as to either the LIABILITY OR AMOUNT
May a phone call, where a caller self-identifies, be sufficient for authentication to allow for the admission of the phone call against the speaker?
No
A phone call may be authenticated if a party called, and the voice that ANSWERED self-identifies.
Sufficient: Party A calls Party B’s phone and the voice answers “This is Party B” is sufficient for authentication.
NOT Sufficient: Party A calls Party B’s phone and the Party A states “This is Party A”
What is the general rule and the exception for life tenants to pay for property fees
Rule: Life tenant is responsible for taxes and interest on the principal to the extent of income from the property.
Exception: LIfe tenant is liable to the holder of the future interest for property taxes
ONLY TO THE EXTENT OF RENT RECEIVED
OR
FMV if tenant is occupying the property.
What is a motion for judgment on the pleadings?
When does it occur?
The same as a
Motion to Dismiss for Failure to State a Claim
Occurs after D has answered P’s Claim
What must an expert witnesses’s opinion testimony be based on?
The Court will termine by a PERPONDERANCE OF EVIDENCE that the opinion is based on
(1) sufficient facts and data AND
(2) employed reliable methodology in forming their opinion
What is the remedy for the inaccurate size description of land in a land sale contract?
Specific performance with a pro-rata reduction in price
What is a Motion of Attachment
A Provisional Remedy: PRETRIAL SEIZURE
A process in which another’s property is seized following a writ or judicial order to secure judgment yet to be entered.
Common Provisional Remedies
TOPIC:CIV PRO
Garnishment: wages/property of a 3rd party
Attachment: another’s property in order to secure judgment yet to be entered
Replevin: Take possession and hold disputed property during trial
What damages does a defendant owe for a conversion?
Full value of the chattel AT THE TIME OF THE CONVERSION
Can a court raise a Rule 11 violation with a monetary sanction against a represented party’s attorney Rule 11 Violation?
No
A court must not impose a monetary sanction against a represented party for their attorney’s Rule 11.
Rule 11: CMR Civ Pro pg 40
When can a TRO be granted WITHOUT Notice?
Moving Party shows:
(1) specific facts in an affidavit or verified complaint to establish IMMEDIATE AND IRREPARABLE INJURY before the adverse party can be heard in opposition;
(2) certified in writing of all efforts to give notice AND reasons why notice should not be required; AND
(3) provide some security (usually an amount determined by the court to pay for the costs/damages potentially incurred by adverse party if wrongfully enjoined/restrained)
What does Rule 11 sanctions apply to?
Applies to:
Pleadings and sanctions related to violations such as pleadings that are for an improper purpose; claims, and defenses are not warranted under existing law or by frivolous argument for changing the law or making a new law; or factual contention or denial that lack current or will not have after further investigation evidence.
Does not apply to:
disclosures and discovery requests, responses, objections, and motions.
When is reformation available in a contract?
Reformation is only proper when the party’s original agreement is improperly documented in a way that does not reflect their shared understanding.
When parties orally agree on a deal, they may then reduce the agreement to writing. When the writing incorrectly reflects the oral agreement, either party may seek reformation in court.
Reformation is NOT a remedy for an underlying disagreement about the terms of the deal. Instead the contract is void due to lack of mutual mistake.
What type of diversity cases are the exception to the general rule that diversity cases may be removed to federal court?
(1) D is a citizen of the forum state (in-state defendant rule)
(2) The case should not be removed more than one year after the case is filed in state court
Nonremovable actions include:
1. certain claim under the VIolence Against Women Act,
2. certain actions against railroads, and
3. claims that arise under a STATE WORKER’S COMPENSATION LAW where the action was filed.
What oaths has SCOTUS upheld against government employees?’
Is it only for federal or can it apply to state?
- Promise not to overthrow the government
- promise to uphold the constitution
Can apply to both federal and state constitutions and oaths.
Generally: Assignment v. Delegation v. Novation
Assignment: conveyance of RIGHTS to another (e.g., right to be paid)
Delegation: transfer of DUTIES
Delegator remains liable
Performance is enforceable against Delegate only if they receive consideration
Delegate is only liable if they receive consideration
Novation: Termination of a contract and a substitution of a new contract with the same terms but with a new party.
Only the new party is liable.
OBLIGEE MUST EXPLICITLY EXPRESS TO ACCEPT THE DELEGATE’S PERFORMANCE AND RELEASE THE DELEGATOR FROM LIABILITY
What are the three types of deeds used to convey property interests other than leaseholds?
General Warranty Deed
Special Warrant Deed
Quitclaim Deed
What covenants does the General Warrant Deed have? Explain each covenant.
- OWNS
- RANSFERABLE
- NO SERVITUDES LIENS
- Not Disturbed by 3rdP
- Defend
- Whatever it takes
Warrants against all defects in title, including those attributable to the grantor’s predecessors.
3 Present Covenants:
SEISEN: Grantor owns the property
RIGHT TO CONVEY: Grantor can transfer
AGAINST ENCUMBERANCES: No servitudes or liens.
3 Future Covenants:
QUIET ENJOYMENT: promise not to be disturbed by 3rd party lawful claim of title
WARRANTY: Promise to defend against reasonable 3rd party claims and compensate for any loss by a claim of superior title
FURTHER ASSURANCES: Promise to do whatever it takes to perfect the grantee’s title if it turns out to be an imperfect title
What is a special warranty deed?
Same covenants as a general warranty but only makes those covenants on behalf of themselves.
What is a quitclaim deed?
A promise of no promises
Grantor isn’t even promising that he has a title to convey.
Unavailable Declarant
Exemption or Exception?
List methods.
Exception
(1) Former TESTIMONY
(2) Statement Against Interest (Financial, Proprietary, Criminal)
(3) Dying Declaration (Homicide or Civil Only)
(4) The party caused the declarant to be unavailable
(5) Statement of personal or family history (e.g. birthdate)
Hearsay Exemptions
(1) PARTY OPPONENT STATEMENTS, including:
~adopted statements
~ agent/employee (1) during the existence of the relationship and (2) a matter within the scope of employment
~Statements by CO-CONSPIRATORS made during COURSE OF AND IN FURTHERANCE OF the conspiracy
(2) PRIOR STATEMENTS by TRIAL Witness (must be present!!!!!)
~IDENTIFICATION
~INCONSISTENT STATEMENT (1) MADE UNDER OATH (2) CROSS EXAMINABLE
~CONSISTENT STATEMENT to rebut charge of recent fabrication or improper motive/influence.
How is a case removed?
Claim in state court may be removed to federal court which the state court sits in (regardless of whether the venue is “proper”) by (ALL) D’s when the case could have been filed in federal court.
Requires:
(1) SMJ
(2) File notice of removal to Federal Court within 30 DAYS of service of first papers
(3) Serve copy to adverse party
(4) File a copy with the state court
Diversity SMJ exception:
(1) 1 year limit after case has been filed AND
(2) ANY D can NOT be a citizen of the forum state.
Under MIRANDA, how is the invocation of right to counsel performed?
What are the exceptions/ when has the invocation lapsed?
Detainee UNAMBIGUOUSLY indicates that want to speak to counsel
Exceptions:
(1) waives right afterwards
(2) release from custodial interrogation and 14 DAYS have elapsed.
Expectation vs. Reliance Damages
Expectation Damages: Standard Measure based on what the non-breaching party EXPECTED TO RECIEVE had the breaching party performed and damages can be sufficient to BUY SUBSTITUTED PERFORMANCE
Reliance Damages: Expectation damages are TOO SPECULATIVE to measure and are the damages to put the plaintiff BACK IN THE POSITION PRIOR TO CONTRACT FORMATION
Automobile Exception
Probable Cause or Reasonable Suspicion Required?
What basis?
Can you open containers?
Exception to the 4th Amendment’s Warrant Requirement
Police may search a vehicle if they have
(1) PROBABLE CAUSE to (2) BELIEVE THAT CONTAINS CONTRABAND, FRUITS, OR INSTRUMENTALITIES OF A CRIME. (3) The search CAN include the ENTIRE CAR (additional PC for the trunk) AND CONTAINERS.
What happens when a Motion for a Judgment as a Matter of Law (JMOL) is denied and DID NOT file a Motion for a Renewed Judgment as a Matter of law (RJMOL) after a verdict?
PRECLUDES appellate court from directing a verdict by the district court that conflicts with the verdict on the stand.
What is Permissive Joinder
Allows Plaintiff to Join Co-Ps or Co-Ds
Requires
(1) SMJ
(2) Same Transaction or Occurence
(3) Common question of law or fact
What are the Elements of Tortious Interference with Contract/Business Relationship
(1) EXISTENCE OF A CONTRACT between Plaintiff and 3rd Part OR Plaintiff has a valid business expectancy
(2) DEFENDANT’S KNOWLEDGE of (1)
(3) INTENTIONAL INTERFERENCE, inducing breach or termination
(4) Damages
When can a
MOTION FOR A NEW TRIAL occur and for what?
Between the start of trial and 28 DAYS after judgment
For any (non-harmless) error
When will the cout order a witness to be excluded?
At the request of a party.
Failure to grant the request results in an error.
Elements of a Conspiracy?
(1) Agreement between two or more people
(2) Intent to enter into agreement
(3) Intent by at least two to achieved objective of intent
(4) object or means of achieving object must be criminal
Majority: Requires overt act
CL: Preparation only ok (I think this is the focus of MBE)
Name the Specific Intent Crimes
What additional defenses are available?
“Students Can Always Fake A Laugh Even For Ridiculous Bar Facts”
Solicitation
Conspiracy
Attempt
First Degree Murder
Assault
Larceny
Embezzlement
False Pretenses
Robbery
Burglary
Forgery
Defenses:
~Voluntary Intoxication
~UNREASONABLE mistake of fact
Which inchoate crimes merge wit the completed crime?
Solicitation and Attempt
NOT CONSPIRACY
What intent is required for accomplice liablity?
Dual Intent
(1) Intent to assist the principal
(2) Intent that the principal commit the substantive offense
The mere knowledge that a crime will result is not enough. UNLESS procuring an illegal time or selling at a higher price because of the buyer’s purpose.
