Bar Exam Flashcards
(165 cards)
1
Q
When is opposing counsel entitled to depose a consulting expert?
A
upon a showing of exception circumstances and that it would be impracticable to obtain the information by other means.
2
Q
When must a demand for jury trial be filed?
A
within 14 days after the service of the last pleading directed to that issue
3
Q
What is judicial notice?
A
when a judge accepts a fact as true even though no evidence to prove it has been offered; a fact not subject to reasonable dispute
4
Q
How must a court instruct the jury of judicial notice in a criminal case?
A
that the jury may or may not accept the noticed fact as conclusive
5
Q
How must a court instruct the jury of judicial notice in a civil case?
A
that the judicially noticed fact is conclusive
6
Q
What is a supplemental pleading?
A
an addition to an original complain of an event, occurrence, or transaction that occurred after the date of the original pleading
7
Q
What standard should the court apply to ruling on a renewed judgment as a matter of law?
A
whether there is legally sufficient evidence to support the verdict
8
Q
When is a prior inconsistent statement admissible for substantive purposes?
A
when the statement is made under oath at trial, a prior hearing, proceeding, or deposition
9
Q
What must the court decide if a required party cannot be joined?
A
IF 1) in equity or good conscience the case should proceed without the required party, or 2) if the absentee party is indispensable meaning the case should be dismissed
10
Q
What is accord and satisfaction?
A
- original contract between two parties,
- a promise by one party to render substitute promise in the future,
- promise by the other party to accept the substituted performance in exchange for the original duty,
- original contract remains enforceable until substituted duty is satsified.
11
Q
What is the common law approach on a dispute of debt amount in accord and satisfaction?
A
if there is a disputed debt and the debtor sends a check for x amount with a notation that the amount is “full payment” and the creditor cashes the check, then the debtor is discharged
12
Q
What is the modern approach on a dispute of debt amount in accord and satisfaction?
A
If there is a disputed debt and the debtor sends a check for x amount with a notation that the amount is “full payment” and the creditor cashes the check, the creditor loses if: 1) the statement of full payment is conspicuous, 2) there is a bona fide dispute, and 3) the debtor acted in good faith.
13
Q
What is the best evidence rule?
A
in proving the terms of a writing (recording, photo, or x-ray), where the terms are material, the original writing must be produced.
14
Q
When is a civil action, where the court has subject matter jurisdiction, not removable?
A
when there is an in-state defendant.
a forum defendant may not remove an action from state to federal court.
15
Q
What are the elements of issue preclusion?
A
- final valid judgment,
- issue was litigated,
- issue was essential to the judgment,
- asserted against someone who was a party to case 1,
- asserted by someone who was a party to case 1 or meets nonmutual elements.
16
Q
What are the requirements of nonmutual defensive claim preclusion?
A
- all elements of issue preclusion are met,
- the person using preclusion was not a party to case 1,
- the person using preclusion is the defendant in case 2
- the plaintiff (party to case 1) had the full chance to litigate in case 1.
17
Q
when is nonmutual offensive claim preclusion permissible?
A
- all elements of issue preclusion are met,
- state allows for consideration of fairness factors and deems the use reasonable fair.
generally nonmutual offensive (by P) claim preclusion impermissible.
18
Q
When can the clerk of the Court enter a default judgment?
A
- the defendant has not appeared,
- the claim is for a sum certain,
- the palintiff gives an affidavit of the sum owed,
- the defendant is not a minor or incompetent.
19
Q
What law applies? (Erie analysis)
A
- is there a controlling federal law that is on point? if yes, no Erie problem.
- if no, is the issue at hand substantive or procedural?
Federal court sitting in diversity must apply substantive law of state in which it sits and apply federal procedural law
20
Q
What issues are well established substantive law?
A
Statute of limitation
Rules for tolling of statute of limitations
21
Q
What is “tried by consent”?
A
when an issue not raised by the pleadings is tried by the parties’ express or implied consent (no objection by OP), it must be treated in all respects as if raised in the pleadings.
party can move to amend pleadings to conform to evidence at any time, even after judgment.
22
Q
Can a judge order a new trial on his own motion
A
Yes. The court may order a new trial for any reason that would justify granting one on a party’s motion.
23
Q
What are the exceptions to new issues not being raised for the first time on appeal?
A
pure matters of law may be considered for the first time on appeal if not properly presented at trial when all necessary facts are complete in the record.
24
Q
Under FRCP, when may a court relieve a party from a final judgment?
A
- mistake, inadvertence, surprise, or excusable neglect,
- newly discovered evidence that could not have been discovered in time to move for a new trial with reasonable diligence,
- fraud, misrepresentation, or misconduct by OP,
- judgment is void,
- judgment has been satisfied, released or discharged, and/or
- any other reason that justifies relief.
25
What requirements must be met for a judgment as a matter of law to be granted?
1. moving party must establish that there was no substantial evidence to support the jury's verdict, AND
2. the motion was first made after the opponent has been fully heard but before the case has been given to the jury.
26
what are the grounds that support a motion for new trial?
1. jury misconduct, and 2. insufficiency of the evidence
27
what is required for a motion to dismiss for failure to state a claim to be successful?
the motion must demonstrate that even if every fact asserted in the complaint is taken as true, no recovery is plausible under any legal theory.
28
When can a party avoid a contract based on mutual mistake?
1. the mistake concerns a basic assumption on which the contract was made,
2. the mistake had a material effect on the agreed exchange of performances, and
3. the adversely-affected party must not bear the risk of the mistake.
will one party get an unexpected unbargained for gain and the other suffer an unexpected loss?
29
When are reliance damages awarded?
when the benefits for a party to a contract are unclear or too speculative
30
When does risk of loss pass to the buyer on a shipment contract (3rd party carrier)?
When the seller duly delivers the goods to the third party carrier and gives notice to the buyer that the goods are with the third party carrier.
31
When can a plaintiff use permissive joinder to join together claims?
claims arise from a single transaction, occurrence, or series of transactions or occurrences AND there is a common question of law or fact.
32
When is a cause of action "merged" into a judgment?
when the claimant wins
33
When is a cause of action "barred" by the earlier judgment?
when the defendant wins.
34
What is the federal rule on what law applies to claim preclusion?
an involuntary dismissal generally will bar a subsequent suit
35
What is anticipatory repudiation?
when a party to a contract communicates to the other party before performance is due that the party will not perform.
36
What can a party due if the other party repudiates?
1. sue immediately,
2. cancel the contract,
3. suspend performance,
4. wait until the date of performance to see if the repudiating party performs,
5. urge the repudiating party to perform.
37
Can a repudiating party withdrawal their repudiation?
Yes until the other party relies on the repudiation or cancelation of the contract.
38
What are the common law crimes for homicide?
murder - malice aforethought
voluntary manslaughter - adequate provocation
involuntary manslaughter - criminally negligent or killing by unlawful act
39
What are the elements of duress?
1) reasonable belief,
2) of imminent infliction of death or serious bodily injury,
3) if the defendant did not commit the crime
40
When can a court enforce a contract lacking consideration based on promissory estoppel?
1) promisor should have expected the promisee to change his position in reliance on the promise,
2) the promisee did change his position, and
3) the change in position was to the promisee's detriment.
41
What is attempt?
When a person takes a substantial step, beyond mere preparation, to commit a crime with the intent that the crime takes place
42
What are the elements of robbery?
1) taking,
2) carrying away,
3) of personal property,
4) with the intent to permanently deprive,
5) accomplished by means of force or threat
43
What rights are included under the 4th amendment?
prohibition against unreasonable search and seizure AND exclusionary rule
44
What rights are included under the 5th amendment?
privilege against compulsory self-incrimination AND prohibition against double jeopardy
45
What rights are included under the 6th amendment?
right to speedy trial, public trial, trial by jury, confrontation clause, and assistance of counsel
46
What is probable cause?
trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which an arrest is authorized by law
47
What is required for a valid Terry stop?
the police have reasonable suspicion of criminal activity or involvement in a completed crime supported by articulable facts.
48
What is required for a valid Terry frisk?
the police have reasonable suspicion that the detainee is armed and dangerous
49
Does a police officer's reasonable mistake of law invalidate a seizure?
NO
50
What is the 4-step process for search and seizure?
1. Was the search or seizure conducted by a government official? (no = not 4th amendment)
2. Did the defendant have a reasonable expectation of privacy? (no = not 4th amendment)
3. Did the police officer have a valid warrant? (yes = valid)
4. If not, did a warrantless search exception apply?
51
What makes a warrant valid?
probable cause and particularity (as to place and items)
52
Does a violation of the knock-and-announce rule result in suppression of evidence?
No
53
What are the exceptions to having a warrant?
1. search incident to arrest,
2. automobile exception,
3. plain view,
4. consent,
5. stop-and-frisk (Terry frisk),
6. Hot pursuit, evanescent (fleeting) evidence, and emergency aid
54
Where may the police search based on incident-to-arrest?
the person, the person's wingspan, and the passenger compartment if a) arrestee in unsecured and still may gain access to the interior of the vehicle, or b) the police reasonably believe that the evidence of the offense for which the person is arrested may be found in the vehicle.
55
Where may the police search based on the automobile exception?
IF the police have probable cause that the vehicle contains fruits, instrumentalities, or evidence a crime, THEN the police may search the whole vehicle and containers that might reasonably contain the item for which they have probable cause to search.
56
When is a Terry frisk justified?
when the officer has articulable and reasonable suspicion that the suspect is armed and/or presently dangerous.
57
What are the requirements for "hot pursuit"?
1. a fleeing felon, and
2. police are within 15 minutes of the suspect
58
What administrative searches are permitted without a warrant?
inventory searches,
airline passengers,
railroad employees after an accident,
public school students
59
When does the 6th amendment right to counsel attach?
once the defendant is charged
60
Will a statement obtained in violation of the 5th or 6th amendment be admissible?
not admissible in the prosecution's case-in-chief, but is admissible as impeachment evidence if the defendant testifies at trial
61
For Miranda purposes, what is custody?
1. would a reasonable person under the circumstances feel free to terminate the interrogation and leave?
2. if so, does the environment present an inherently coercive pressure?
62
For Miranda purposes, what is interrogation?
any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee.
63
What is the exclusionary rule?
unconstitutionally obtained evidence is inadmissible at trial and all "fruit of the poisonous tree" must also be excluded absent a showing that the cost of excluding outweighs the deterrent effect to police misconduct.
64
What are the exceptions to the exclusionary rule?
1. Independent source,
2. intervening act of free will, and
3. inevitable discovery
65
What are the considerations on whether a defendant's right to a speedy trial has been violated?
1. length of delay,
2. reason for delay,
3. whether the defendant asserted their right, and
4. prejudice to the defendant
(LRAP)
65
What material is exculpatory under Brady?
1. evidence favorable to the defendant because it impeaches or is exculpatory, and
2. prejudice has resulted (reasonable probability that the result would have been different if evidence was properly disclosed)
66
when is a defendant incompetent?
if at the time of trial the defendant 1) lacks a rational and factual understanding of the charges and proceedings, or 2) lacks the sufficient present ability to consult with their lawyer with a reasonable degree of understanding
67
What makes a judge biased?
actual malice against the defendant or having a financial interest in a resulting guilty verdict.
68
When can a plea bargain be attacked collaterally?
1. involuntariness,
2. lack of jurisdiction,
3. ineffective assistance of counsel, or
4. failure to keep the plea bargain.
69
What is required for a jury to impose the death penalty under a statutory scheme?
1. gives jury reasonable discretion,
2. full information concerning defendants, and
3. guidance in making the decision
70
When does double jeopardy attach for a jury trial?
at the empaneling and swearing of the jury
71
When does double jeopardy attach for a bench trial?
when the first witness is sworn
72
When does double jeopardy attach for a juvenile proceeding?
when the case commences
73
For double jeopardy purposes, when are two crimes NOT the same offense? (not double jeopardy)
when each crime requires proof of an additional element that the other does not require
74
Who may assert the 5th amendment privilege against self-incrimination?
any person if the answer to the question they are asked might tend to incriminate them
75
When can the 5th amendment privilege against self-incrimination be asserted?
whenever the person's response might furnish a link in the chain of evidence needed to prosecute them
76
What is testimonial evidence
evidence that relates to a factual assertion or discloses information
77
What is protected by the 5th amendment right against self-incrimination?
1. testimonial evidence (cannot object to lineup or ID procedures), and
2. compelled testimonial evidence (cannot object to documents or subpoena duces tecum)
78
When can silence by a defendant be mentioned at trial?
Silence that occurs before miranda warnings have been given.
79
What does the excessive fines clause of the 8th amendment apply to?
criminal forfeitures as punishment; not civil forfeitures.
a penal forfeiture is "excessive" if it is grossly disproportionate to the gravity of the offense
80
What are the elements of larceny?
1) taking of property, 2) that belongs to another, 3) without their consent, 4) with the intent to permanently deprive the owner.
81
What effect does a conditional acceptance have under the UCC?
rejection
82
When is a unilateral mistake result in a valid contract?
when the non-mistaken party knew or should have known of the mistake.
83
What are the three ways a 3rd party beneficiary's rights can vest?
1. learns of the contract and assents,
2. learns of the contract and relies on it, or
3. learns of the contract and brings a lawsuit to enforce its rights.
84
What are the exceptions to the parole evidence rule?
1. to show a condition precedent,
2. all formation defenses,
3. trade usage,
4. course of dealings,
5. industry practice
85
What is a breaching party entitled to on a claim for damages?
reasonable value of services provided less the damages incurred by the non-breaching party
86
Which inchoate crimes have merger?
solicitation and attempt
87
What are the specific intent crimes?
Solicitation,
Conspiracy,
Attempt,
First Degree Premeditated Murder,
Assault,
Larceny,
Embezzlement,
False Pretenses,
Robbery,
Burglary,
Forgery
Students Can Always Fake A Laugh Even For Ridiculous Bar Facts
88
What are the common law states of mind?
specific intent, general intent, malice, and strict liability
89
What are the MPC fault standards?
purposely, knowingly, recklessly, and negligently
90
What crimes can there be transferred intent?
homicide, battery, and arson
91
Who are the parties to a crime at common law?
Principal in first degree = actually engaged in conduct,
Principal in second degree = aided, advised, or encouraged,
Accessory before the fact = no present but aided, advised, or encouraged,
Accessory after the fact = with knowledge of crime that assisted
92
Who are the parties to a crime under modern statutes?
Principal = actually engaged in conduct
Accomplice = aides, advises, or encourages
93
What are the elements of conspiracy?
1) an agreement between two or more persons,
2) an intent to enter into an agreement,
modern law = one party has intent / CL = two guilty minds
3) an intent by at least two or more person to achieve the objective of the agreement
4) overt act - can be mere preparation
94
What are the elements of solicitation?
the asking, inciting, counseling, advising, urging or commanding another to commit a crime with the intent that the person solicited commits the crime
agreement is not necessary
95
What are the elements of attempt?
What are the tests for overt act under CL and MPC?
specific intent and an overt act (beyond preparation) in furtherance of the crime
CL overt act = proximity test = dangerously close to completion of the crime
MPC overt act = substantial step test = strongly corroborates the actor's criminal purpose
96
What are the common law murders?
Intent to kill,
intent to inflict great bodily injury,
reckless indifference / depraved heart,
intent to commit a felony
97
What are the statutorily modified classifications for murder?
1st degree murder = deliberate and premeditated or felony murder
2nd degree murder = depraved heart
98
What are the MPC classifications for murder?
Felony murder (BARRK)
Voluntary Manslaughter (adequate provocation)
Involuntary Manslaughter (criminal negligence / misdemeanor)
99
What are the elements of battery?
unlawful application of force that results in bodily injury or an offensive touching (general intent)
100
What is required for aggravated battery?
deadly weapon, serious bodily harm, or battery of a child, woman, or police officer
101
What are the elements of assault?
An attempt to commit a battery OR the intentional creation of a reasonably apprehension of imminent bodily harm
102
What is required for aggravated assault?
the use of a deadly or dangerous weapon or with the intent to rape, maim, or murder
103
What are the elements of false imprisonment?
unlawful confinement of a person without consent.
MPC = substantial interference with person's liberty
104
What are the elements of kidnapping?
unlawful confinement of a person either with some movement of the victim or concealment of the victim
105
What is aggravated kidnapping
for ransom, for purpose of committing other crimes, for offensive purposes, and child stealing
106
What are the elements of embezzlement?
1) fraudulent,
2) conversion,
3) of personal property,
4) of another,
5) by a person lawfully in possession of that property
107
What are the elements of false pretenses?
1. obtaining title,
2. to personal property of another,
3. by an intentional false statement,
4. with intent to defraud the other
108
What is "larceny by trick"?
1) victim is tricked,
2) by a misrepresentation of fact,
3) into giving up custody or possession of the property
109
What are the elements of robbery?
1) a taking,
2) of personal property of another,
3) from the other's person or presence,
4) by force or threats of immediate death or physical injury,
5) with the intent to permanently deprive
110
What are the elements of extortion? (CL v. modern)
CL - corrupt collection of unlawful fee by officer
Modern - obtaining property by means of threats to do harm or to expose information / blackmail
111
What are the elements of receipt of stolen property?
1) receiving possession and control,
2) of stolen personal property (at time D receives),
3) known to have been obtained in a manner constituting a criminal offense,
4) by another person,
5) with the intent to permanently deprive
112
What are the elements of forgery?
1) making or altering,
2) a writing with apparent legal significance,
3) so that it is false,
4) with the intent to defraud
113
What are the elements of burglary under common law?
1) breaking,
2) and entering,
3) of a dwelling used regularly for sleeping
4) of another person,
5) at nighttime,
6) with the intent to commit a felony in the structure
114
What are the elements of arson?
1) the malicious (intentional or reckless disregard),
2) burning (charring),
3) of the dwelling,
4) of another (cannot be own under CL)
115
What are the 4 insanity tests?
1) M'Naghten Rule
2) Irresistible Impulse Test
3) Durham Test
4) ALI - MPC Test
116
What are the elements of the M'Naghten Test?
1) disease of the mind,
2) that caused a defect of reason,
3) such that the defendant lacked the ability at the time of D's actions to either known the wrongfulness or understand the nature and quality of D's actions
117
What are the elements of the Irresistible Impulse Test?
because of their mental illness, D was unable to control D's actions or conform their conduct to the law
118
What are the elements of the Durham Test?
the crime was a produce of D's mental illness (but for)
119
What are the elements of the ALI/MPC Test?
as a result of D's mental disease or defect, D lacked substantial capacity to either 1) appreciate the criminality of their conduct, or 2) conform their conduct to the requirements of the law
120
What additional defenses are available for specific intent crimes?
voluntary intoxication and unreasonable mistake of fact
121
When can a person use nondeadly force as self defense?
When the person is not at fault and reasonably believes it is necessary to protect themselves from imminent use of unlawful force.
122
When can a person use deadly force as self-defense?
1) person is without fault,
2) is confronted with "unlawful force", and
3) reasonably believes that they are threatened with imminent death or great bodily injury
123
When can a person use self-defense to protect another person?
If the person using self-defense reasonably believes that the person who needs assistance has the legal right to use self-defense.
124
How can you defend a dwelling?
A person may use non-deadly force when reasonably believes that such conduct is necessary to prevent or terminate unlawful entry or attack
Deadly force can only be used to prevent violent entry
125
What is required for the defense of necessity?
a reasonable, objective belief that the commission of the crime was necessary to avoid an imminent and great injury to society than the crime.
Death is never justified.
126
What are the four unities that create joint tenancy?
T-TIP
1) at the same TIME,
2) by the same TITLE,
3) with identical, equal INTEREST,
4) with rights to POSSESS the whole
127
What is a Tenancy by the Entirety?
tenancy between only a married couple with the right to survivorship
128
How can you sever a joint tenancy?
SAP - Sale and Partition
129
How is a tenancy by the entirety severed?
death, divorce, mutual agreement, or execution by a joint creditor for both spouses
130
What is a tenancy in common?
a concurrent estate with NO rights to survivorship
131
What is ouster?
if one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part of the propery
132
Does a co-tenant get reimbursement for a unilateral improvement?
No, but can get a credit for value increase at sale.
133
What are the three kinds of waste?
Voluntary, permissive, and ameliorative
134
What are the four types of leases?
1) tenancy for years,
2) periodic tenancy,
3) tenancy at will, and
4) tenancy at sufferance
135
What is a tenancy at will?
has a fixed, determined end date.
automatically terminates on end date
136
What is a periodic tenancy?
a lease that continued for successive intervals until proper notice of termination is given.
137
What is a tenancy at will
only created by express agreement that the lease will continue until either party desires to terminate.
138
What is a tenancy at sufferance?
when a tenant wrongfully holds over - remains in possession past the expiration of their lease. Lease will last until eviction or bind the tenant to a new periodic tenancy
139
What obligation does a tenant have to repair?
routine repairs to maintain the premises
NOT for normal wear and tear
140
What are a landlord's remedies if a tenant breaches and vacates?
SIR - Surrender, Ignore, or Re-Let
Majority = duty to try to re-let
141
What is the implied covenant of quiet enjoyment?
a tenant has a right to use and enjoyment of the premises without interference
142
When does a breach of the implied covenant of quiet enjoyment occur?
breach by wrongful conviction (actual or partial)
breach by constructive eviction
143
What is constructive eviction?
SING - if there is a SUBSTANTIAL INTERFERENCE (chronic or permanent problem) due to the landlord's actions or failures, the tenant gives NOTICE to the landlord and he fails to fix it, and the tenant GETS OUT within a reasonable time after failure to fix.
144
What is the implied warranty of habitability?
provides that residential premises must be fit for basis human habitation.
145
What are a tenant's remedies of a breach of the implied warranty of habitability?
MRRR
MOVE out and terminate the lease,
REPAIR and deduct costs from future rent,
REDUCE rent or withhold until the court determines fair rental value (escrow), or
REMAIN in possession, pay full rent, seek damages
146
What is a leasehold assignment?
a transfer of the tenants entire remaining term of their lease
147
What is a leasehold sublease?
a transfer of part of a tenant's lease, but the tenant retains some part of the remaining term
148
What is the common law of caveat lessee?
in tort, a landlord is under no duty to make the premises safe
149
What are the five exceptions to caveat lessee?
CLAPS
Common areas,
Latent defects (warn only),
Assumption of repairs,
Public use rule, and
short term lease of furnished dwelling
150
What are the types of easements?
Appurtenant - when the easement benefits its holder in his physical use or enjoyment of his own land (2 parcels)
In Gross - confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land (1 parcel)
151
Which type of easement is transferable?
appurtenant
152
How do you create an easement?
PING
Prescription, Implication, Necessity, or Grant
153
What are the elements of easement implied from pre-existing use?
1) the previous use of the servient part was apparent and continuous, and
2) the parties expected that the use would survive division because it is reasonably necessary to the dominant tenement's use and enjoyment.
154
How can an easement be terminated?
END CRAMP
Estoppel, necessity, destruction, condemnation, release, abandonment, merger, or prescription
155
What is a license?
the mere privilege to enter another's land for some delineated purpose.
156
What are the requirements for a burdened property by covenant run with the land?
WITHN
Writing - original promise,
Intent - to run with land,
Touch and concern the land,
Horizontal (succession of estate) and Vertical Privity (non-hostile nexus)
Notice - actual, inquiry, or record
157
What are the requirements for a benefitted property by covenant to run with the land?
WITV
Writing - original promise
Intent - run with the land
Touch and concern the land,
Vertical Privity
158
What is an equitable servitude?
a promise that equity will enforce against successor of the burdened land regardless of whether ir runs with the land at law or not.
seeks equitable / injunctive relief
159
How is an equitable servitude created?
WITNES
Writing,
Intent,
Touch and concern,
Notice
for Equitable Servitudes
160
What is the Implied Equitable Servitude / Common Scheme Doctrine
1) a subdivider has a general scheme of residential development in previously sold lots,
2) the general scheme is included on defendant's lot, and
3) the defendant had notice of the promise contained in those prior deeds.
161
What are the elements of adverse possession?
1) for the statutory time,
2) continuous,
2) open and notorious possession,
3) with actual and exclusive possession,
4) hostily (without permission)
162
When can adverse possession time tack?
when there is privity (non-hostile nexus) between adverse possessors.
163
Is a mandatory presumption allowed as a jury instruction in a criminal case?
No - mandatory presumptions are not allowed against a criminal defendant on an element of the charged crime
164
What is the standard for the Equal Protection Clause for classifications based on alienage?
classifications based on alienage must be narrowly tailored to promote a compelling state interest
