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.
Can an accomplice be changed with a crime that is higher that the principal?
E.g., the Principal charged with attempted arson and conspiracy as a plea deal to testify against an accomplice for conspiracy and attempted murder
Yes, an accomplice can be charged with a crime that is higher than the principal
Intentional Torts Defense:
Public vs. Private Necessity
Explain
Public Necessity: An ABSOLUTE DEFENSE
if the Defendant acted to avert an IMMINENT PUBLIC DIASTER
Private Necessity: A LIMITED/QUALIFIED DEFENSE
Defendant acted to avert serious harm to a LIMITED NUMBER OF PEOPLE
MUST pay compensatory damages for any injury they caused UNLESS the act was for the property owner’s benefit.
What is the Import-Export Clause?
Limits the State’s power to tax foreign commerce.
What is the priority of a Purchase Money Mortgage?
A PMM takes priority over PREVIOUS claims regardless of recording or not.
PMM priority does not apply against SUBSEQUENT claims if the PMM is not recorded.
Civ Pro: What are the waivable defenses under Rule 12(b)
3Ps and a V
improper Personal jurisdiction
improper Process
improper service of Process
Improper Venue
Waived if not in the FIRST motion or answer
When can an entire installment contract be terminated vs only a single order in an installment contract?
Single Installment:
An installment can be rejected only if the nonconformity SUBSTANTIALLY IMPAIRS the value of THAT installment and CANNOT BE CURED
Entire Installment Contract:
Nonconformity SUBSTANTIALLY IMPAIRS the value of the ENTIRE contract.
When can prior sexual misconduct of a Defendant be admitted?
Does the prior sexual misconduct require to be a conviction?
It may be admitted for any matter that it is relevant in.
For a defendant accused of sexual assault or child molestation, the court may admit evidence that the defendant committed any other sexual assault.
Does NOT require a conviction. Only specific acts can be offered for admittance.
Is a class action settlement, the court MAY or MUST hold a hearing to approve the settlement agreement?
The court MUST hold a hearing to approve the settlement agreement.
MUST ensure that the settlement is fair, reasonable, and adequate
In a class action settlement, the court MAY or MUST allow absent class members to opt out of the settlement agreement?
The court MAY allow absent class members to opt out
What is the intent needed to commit Felony Murder?
What are the Felony Murder Crimes?
The intent necessary to commit the underlying felony.
BARRK:
~Burglary
~Arson
~Robbery
~Rape
~Kidnapping
Are class action lawsuit members bound to a judgment for injunctive relief?
Do they require notice of the judgment or the proceeding?
Yes, members of a class action (for seeking injunctive or declaratory relief) are bound to judgment and DO NOT require notice.
If the class action was based on a common question of fact or law, the class action members REQUIRE NOTICE
What is the Parol Evidence Rule?
What is not subject to the parol evidence rule?
Parol Evidence makes evidence inadmissible to vary terms of a final integration of a contract:
(1) Written/Oral expressions made PRIOR TO OR
(2) oral expressions CONTEMPORANSOUS to the writing
Exceptions:
* Partial Integrations–>ADDITIONAL TERM= OK
* INTENT Evidence
* FORMATION Defects Evidence
* Oral Conditions Precedent
* Evidence to resolve term AMBIGUITY or uncertainty
* Evidence of “true consideration”
* Reformation: to resolve clerical errors
* SUBSEQUENT (ORAL) MODIFICATION
Article 2 specific: can’t contradict written contract but may add CONSISTENT ADDITIONAL TERMS UNLESS: (1) there is a merger clause OR (2) the courts from all the circumstances that the writing has inteded as a COMPLETE AND EXCLUSIVE statement of terms under the agreement.
What is the effect of the existence of a merger clause in a contract for the purposes of parol evidence rule?
Merger clauses are one factor in determining whether there is a final integration.
What is the only intentional tort that requires damages?
IIED
Is physical injury required for IIED and NIIED Damages
IIED: actual damages as in severe emotional distress (not nominal damages) is required but not physical injury
NIIED: Actual damages from PHYSICAL injury/symptoms required
When are attorney fees allowed in damages calculation?
Generally not allowed
unless a fee-shifting statute or contract clause
What is the evidentiary burden, and who holds the evidentiary burden for an affirmative defense (e.g., self-defense) claim in a criminal case?
The defendant by a preponderance of the evidence.
Then prosecution must disprove the defense beyond reasonable doubt
Extraordinary Writ:
Writ of Mandamus vs Writ of Prohibition
What are they?
Who writes the writ?
An original proceeding in the court of appeals to compel a district judge to make or vacate a particular order.
Only avaialbe if district court is (1) violating a clear legal duty and (2) appeal would be insufficient to solve the problem.
The appellate court writes either a write of mandamus or prohibition.
Writ of mandamus: commands a trial judge to act
Writ of prohibition: commands a trial judge to refrain from acting
Torts:
Can a doctor be substituted with another doctor for surgery without the explicit consent of the patient, is there implied consent?
No without explicit consent or implied (e.g., from an emergency) then it is a battery.
What does contribution mean and What is the difference between the comparative and the equal shares contribution systems?
Contribution: Allows the D who pays more than their share of damages under Joint and Several liabilities to have a claim against other jointly liable parties.
Contribution is not allowed for intentional tortfeasors.
Comparative System: D, who pays more, can receive contributions in PROPORTION (%) to the relative fault of the other Ds
Equal Shares: D, who pays more, can receive contributions equal shares REGARDLESS of degree of fault. Liaiblity is equally shared.
Strict Liability for Abrnormally Dangerous Activities
Provide examples of abnormally dangerous activities.
(1) activity must create a FORESEEABLE RISK OF SERIOUS HARM EVEN REASONABLE CARE IS EXERCISED
(2) activity is NOT A MATTER OF COMMON USAGE in the community
Activities:
~Blasting or manufacturing EXPLOSIVES
~storing or transporting CHEMICALS or BIOLOGICS
~RADIATION
~NUCLEAR energy
What is the difference in who can sue under
Negligence v. Strict Liability v. Implied Warranties?
Negligence: Any foreseeable plaintiff
Strict Liability: Any foreseeable plaintiff (including bystanders)
Implied Warranties: Purchaser, family, household, guest
Who can you seek indemnity from? Those ABOVE or BELOW you in the chain?
Only ABOVE
Meaning that the people ABOVE you, indemnify you (hold you harmless) for any losses.
When does a third party beneficiary’s rights vest?
(1) LEARN and AGREE at the request of the parties
(2) LEARN and SUE
(3) LEARN and materially change position in JUSTIFIABLE RELIANCE
For marketability of title, what must be done for a property obtained by adverse possession?
Property obtained in adverse possession is not marketable until the Seller files an action for quiet title and stamps the deed for marketable title.
What does the Contracts Clause of the Consitution Apply to?
To the States ONLY
Applies to RETROACTIVE invaliding or substantially impairing already existing contracts
UNLESS government arguments that an IMPORTANT government interest and NARROWLY TAILORED to meet that interest.
Which invasion of privacy torts require publication?
Which invasion of privacy torts do not require publication?
Require publication:
(1) Commerical misAPPROPRIATION of one’s likeness
(2) Facts placing the plaintiff in a FALSE LIGHT
(3)PUBLIC DISCLOSURE OF PRIVATE FACTS
Does NOT require publication:
(1) INTRUSION on the plaintiff’s affairs or seclusion
What standard of review is applied for discrimination by AGE?
Equal Protection- Rational Basis
The plaintiff must show that the law is not rationally related to a legitimate government interest.
Elements of
Private Nuisance
(1) SUBSTANTIAL, (2) UNREASONABLE INTERFERENCE with (3) ANOTHER’S (4) USE OR ENJOYMENT of their property
Novation
New contract that substitutes a new party to recieved the benefits and assumed duties of the original party.
Serves to DISCHARGE/TERMINATE the old contract if:
(1) Previous valid contract
(2) agreement of ALL parties ( new + original parties)
(3) immediate extinguishment of the original parties’ contract
(4) new contract is valid and enforceable.
OBLIGEE MUST EXPLICITLY EXPRESS TO ACCEPT THE DELEGATE’S PERFORMANCE AND RELEASE THE DELEGATOR FROM LIABILITY
Is a contractor, who is contracted to build a home, but it is destroyed during construction
(1) obligated to build?
(2) If so, is the contractor entitled to additional compensation?
(1) Yes
(2) No additional compensation. Only the contract price
CMR pg. 88
What is ENTRUSTING? (Contracts)
Delivering/leaving a good with a merchant, which gives the merchant the power to transfer all rights of the entruster to a BIOCOB
Consequential Damages and the Certainty Rule
Reflect losses above the expectation damages.
Only received if a REASONABLE PERSON would have FORSEEN damages as probable due to breach.
Breaching party must have KNOWN or SHOULD HAVE KNOWN AT THE TIME OF THE CONTRACT FORMATION
Certainty Rule: PP must prove losses were CERTAIN and NOT speculative.
Incidental Damages
Expenses reasonably incident/related to breach
FORESEEABILITY NOT REQUIRED
“Cost of dealing with the breach
Duty to Mitigate
Common Law: Duty to mitigate requires making a reasonable effort to cut losses
Non-breaching party CANNOT recover damages that could have been avoided with reasonable effort.
Certainty Rule
P must prove losses suffered were: (1) CERTAIN and (2) NOT SPECULATIVE.
What are compensatory damages and what are the money damage types?
Compensatory: Putting P back into the position they would have been, had the promise been performed.
(1) Expectation: Benefit of the bargain
(2) Reliance: When expectation is TOO SPECULATIVE, cost to put P back into the position as if the contract was never formed.
(3) (Buyer’s) Consequential: SELLER KNEW +. FORSEEABLE = add the cost of breach to damages.
Misrepresentation of Material Fact
Void or Voidable
VOIDABLE by innocent party (i.e., recission) IF innocent party JUSTIFIABLY RELIED on the MATERIAL misrepresentation.
Material misrepresentation:
(1) induce a REASONABLE PERSON to agree OR
(2) maker KNOWS that for some special reason, it is likely to induce this particular innocent party to agree.
Define
Objective vs. Subjective
Impossibility
Which one is excusable?
Objective impossibility = EXCUSABLE
Duties cannot be performed by ANYONE (i.e., factually impossible)
Subjective Impossibility = NOT EXCUSABLE
Duties cannot be performed by BREACHING PARTY BUT could be performed by someone else.
What are the monetary damage types for
NON-COMPENSATORY DAMAGES?
Punitive: Not allowed
Nominal: May be awarded when there is a breach but there is no actual loss proven.
Liquidated: damages defined by contract.
Enforceable if:
(1) breach damages are difficult to estimate at the time of the formation of the contract AND
(2) the amount is a reasonable forecast
FLAG AS NOT ENFORCEABLE liquidated damages
(1) lump sum
(2) unreasonable
(3) penalty
Elements of Defamation
(1) Defamatory statement about Plaintiff
(2)Statement is FALSE
(3) PUBLICATION (intentional or negligent) made to a third person
(4) D is at FAULT
(5) DAMAGE (presumed depending on libel or slander) to Plaintiff’s reputation
Libel: Written = PRESUMED damages
Slander: Spoken = P must prove special damages under SLANDER PER SE
Slander Per Se:
(1) reflects on P’s BUSINESS OR PROFESSION
(2) P has committed a SERIOUS CRIME (“moral turpitude”)
(3) P engaged in SERIOUS SEXUAL MISCONDUCT
(4) P has a LOATHSOME DISEASE (e.g., leprosy or STDs.)
Does double jeopardy attach to empaneling a grand jury?
If so or if not, when (else) does double jeopardy attach?
NO, it does not attach when empaneling a grand jury
Attaches when:
Jury Trial–> Empaneling/swearing in TRIAL Jury
OR
Bench Trial –> Swearing in FIRST WITNESS
Elements of
Larceny
Taking and carrying away the property of another without the owner’s consent and with the specific intent to permenantly deprive the owner of the property.
(1) TAKING (control or possession)
(2) CARRYING AWAY (i.e., any slight movement)
(3) WITHOUT THE CONSENT of the owner AND
(4) Specific Intent to permenantly deprive the owner of property
Larceny by Trick vs. Larceny by False Pretenses?
Larceny by Trick = POSSESSION
Larceny by False Pretenses = TITLE
Malice Crimes
What are they?
What type of Intent?
Special Defenses?
Malice Crimes = CL MURDER and ARSON
Intent = MALICE = reckless disregard of an obvious or high risk that the particular crime will occur.
Special Defenses: NONE, NO SPECIFIC INTENT DEFENSES
Felony vs. Misdemeanor
Felony= Punishable by DEATH or IMPRISONMENT of ONE YEAR or more.
MPC Fault (Intent) Standards
Subjective Standards
Purpose: CONSCIOUS OBJECT TO ENGAGE in certain conduct OR CAUSE certain result.
Knowledge: AWARE of the nature of their conduct
Reckless: CONSCIOUSLY DISREGARD a SUBSTANTIAL and UNJUSTIFIED RISK; “GROSS deviation from the standard of care”)
Objective Standard
Negligent: FAIL TO BE AWARE of a substantial and unjustified risk; “SUBSTANTIAL deviation from the standard of care”
Transferred Intent
What is it?
Does it apply to Attempt?
Defendant can be liable when they INTEND to harm but it harms a different victim or object.
**Always 2 victims and 2 crimes ***
Applies to:
(1) Usually 1st degree Murder Question*
(2) Homicide
(3) Battery
(4) Arson
Does NOT apply to Attempt
HOWEVER, you can have:
(1) Transferred Intent of the COMPLETED CRIME against the ACTUAL victim AND
(2) Attempt against the INTENDED victim
Crim Law: Merger
Common Law v. Modern v. MPC
Common Law: Misdemeanor + Felony = Felony (Merges)
Modern: Generally, NO MERGER except
(1) Solicitation + Completed Crime = Merge
(2) Attempt + Completed Crime = Merge
NO CONSPIRACY MERGER
MPC: Only 1 inchoate crime
~attempt
~conspiracy
~solicitation
Common Law Accomplice Liability
Principal in the First Degree: Does the Act
Principal in the Second Degree: Aids, Advise, Encourage AND PRESENT
Accessory BEFORE the Fact: Aided, Advise, Encourage AND NOT PRESENT
Accessory AFTER the Fact: Knowledge of Felony + ASSISTED IN ESCAPE OR PUNISHMENT
**Requires conviction of the principal for conviction of accessory **
(but most jurisdictions have abandoned this requirement)
Modern Statue Accomplice Liability
What is the conduct for each type of defendant and what are they liable for?
Principal:
~Does the Act
~Liable for principal crime
Accomplice:
~Aid, Advise, or Encourage Principal
~Liable for principal crime
Accessory After the Fact:
~Knowing of Felony + ASSIST in escape
~Liable for a separate less serious crime, NOT the principal crime
Claim Preclusion (Res Judicata)
Bars some causes of action on a claim if:
(1) Final judgment on the merits is valid
(2) Same Claimant vs. SAME DEFENDANT
(Defendant includes privity: e.g., employer-employee for Employee action)
(3) Same claim in a later lawsuit.
Choice of Venue
Removal: Venue is the Federal District that houses the State from which the case is being removed.
Proper venue:
(1) Where a substantial part of the claim occurs or where the property is located.
(2) Where ALL Ds reside
Supplemental Jurisdiction
Requirements?
Limitations?
Requirements
~At least two claims. (Claim A and Claim B)
Claim A: Has federal question or diversity
Claim B:
(1) No FQ or Diversity
(2) Claim shares a COMMON NUCLEUS OF OPERATIVE FACTS (i.e., same transaction or occurrence) as Claim A.
DIVERSITY LIMITATION:
PLAINTIFF CANNOT bring in a claim under supplemental jurisdiction UNLESS
there are multiple Ps and the only issue is the amount in controversy.
Can a court motion for Rule 11 violations (sanctions) on its own?
Yes
By issuing an “ORDER TO SHOW CAUSE” on why the sanctions should not be imposed
Court must give the sanctioned party the OPPORTUNITY TO BE HEARD.
Can a Defendant preserve a waivable defense under Rule 12b by amendment if it was not in the original answer/motion?
Yes
Up to 21 days after service of the ANSWER
When may the Supreme Court review a decision by a STATE court?
Adequate and Independent State Grounds
SCOTUS can review State Court decisionsion if:
(1)FINAL JUDGMENT
(2) Judgment from State’s HIGHEST court
(3) MUST pose a SUBSTANTIAL FEDERAL QUESTION AND
(4) Decision DOES NOT rest on adequate and independent state grounds (i.e., State Supreme Court must have made a decision on federal law only NOT making a decision in part or full on state law)
At Common Law, can you withdraw from a conspiracy?
What about for subsequent crimes?
No to the conspiracy
Yes to subsequent crimes
When are modifications in contracts permissible?
UCC: Yes if in GOOD FAITH
Non-UCC:
Common Law- Pre Existing Duty Rule–>Need NEW CONSIDERATION for contract modification
Modern Trend: Modification is ok if “FAIR, EQUITABLE, and DUE TO SOME UNFORSEEABILITY” at the time of the contract formation
What limitations are there for Presidential pardons?
(1) Convictions for STATE offenses
(2) Impeached Federal Official
What title does Seller and Buyer have under equitable conversion doctrine?
Seller = Legal Title (Possession and Right to payment)
Buyer= Equitable Title (Right of Real Property)
Does the Equal Protection Clause of the 14th Amendment apply to both state and federal laws?
No the Equal Protection clause of the 14th Amendment does not apply to federal laws.
Merchant Confirmatory Memo
What is it?
When does it apply?
When does it bind respective parties?
Exception to the Statute of Frauds $500 Sale of Goods Writing Requirement
(1) Merchant-Merchant
(2) 1 Merchant (sender) sends writing after an ORAL agreement
Binding:
Sending Merchant: IMMEDIATELY
Receiving: AFTER 10 DAYS OF RECIEPT WITHOUT OBJECTION
How is the service of process permitted by state law methods?
Permitted State Law Service of Process:
(1) State Law WHERE THE FEDERAL COURT SITS
OR
(2) State Law of WHERE THE SERVICE IS MADE
Does the dying declaration unavailable witness hearsay exception apply to attempted murder?
No only HOMICIDE CHARGE or civil cases
Can deeds be delivered to dead people?
No
For lawsuits pertaining to failed payments in installment contracts that contain acceleration clauses, is Plaintiff REQUIRED to file BOTH SUITS (1. the failed payments and 2. acceleration payment) in the SAME CLAIM?
Yes. If not, then Plaintiff is barred under claim preclusion (res judicata).
When may a non-party intervene in an action as a matter of right?
(1) Unconditional right by Federal Statute
(2) Non party has
1. an interest in the subject matter of the action,
2. disposition/resolution of the action may (as a practical matter) impair the nonparty’s ability to protect its interest, AND
3. nonparty’s interest is not adequately protected by an existing party
What does the FHA prohibit for advertisements?
Advertisements that indicate any preference, limitation, or discrimination based on: race, color, religion, sex, disability, familial status, or national origin.
When is there a right to a jury trial?
When is there not a right to a jury trial?
Criminal cases
Civil actions of law (claim for damages)
Civil actions of law and equity (claim for damages and induction)
NOT civil action of equity (the only claim is a claim for equitable relief/injunction)
What is diversity of citizenship based on in class action lawsuits?
NAMED P’s and D’s
When must a notice of removal be done and what are the statute of limitations on removal?
Notice of Removal must be done within 30 days of service. (Multiple D’s, later served D can join other Ds within 30 days of service from later D to earlier D).
For diversity cases, defendants may not remove more than 1 year after the state action has commenced.
Is “clear and convincing evidence” or “reasonable probability” the standard used in determining whether a lawyer’s ineffective assistance of counsel would have changed the trial outcome?
Reasonable Probability.
When there is a easement by necessity who determine where the easement will be placed?
The owner of the servient land decides
