Bar Exam MBE missed questions

Question 1

What constitutes ineffective counsel under the 6th Amendment?

Answer 1

1. Did the attorney deviate from the norms?
2. Is it reasonably probably that the verdict would have been not guilty but for the lawyer?

Question 2

Name elements/exceptions for NEGLIGENT infliction of emotional distress (NIED)

Answer 2

1. Negligent Conduct
2. Zone of Danger
3. Severe emotional AND physical harm

EXCEPTION: If someone negligently handles a dead body, emotional distress alone is enough. Also, a false diagnosis of a serious medical condition is enough.

Bystander Theory: 3rd Party can only recover if:
1. close family member
2. Emotional distress (alone this is enough)

Question 3

Elements of Strict Products Liability

Answer 3

1. Defective product (manufacture or design)
2. Sold by commercial seller
3. Foreseeable user
4. Used in manner intended
5. Product unchanged/unaltered

DEFENSES:
1. Assumption of Risk
2. Misuse

Question 4

Criminal Battery vs Tort Battery

Answer 4

Criminal:
1. NO INTENT REQUIRED
2. The unlawful application of force (touching)

TORT:
1. SPECIFIC INTENT
2. Harmful or offensive contact (includes stuff attached to person)

Question 5

General tort Negligent elements

Answer 5

1. Duty (foreseeable plaintiffs - people in zone of danger) - PROFESSIONAL DUTY - DUTY TO BEHAVE LIKE SIMILAR PROFESSIONALS WITH SAME CREDENTIALS/EXPERIENCE
2. Breach (failure to comply with duty of care)
3. Causation (Actual - “but for” and Proximate - “foreseeable and fair” - not too attenuated)
4. Damages

Question 6

What names/locations of witnesses must be disclosed?

Answer 6

Names and locations of ALL people who would be called as witnesses is discoverable

Question 7

Does voluntarily dismissing a claim WITHOUT PREJUDICE render a final judgment?

Answer 7

NO! voluntary dismissal of a claim does NOT yield a final judgment until AFTER the statute of limitations expires - notice of appeal must then be filed within 30 days of the “final judgment”

Question 8

Does the judge or the Jury (or both) determine the admissibility of credibility bolstering evidence to support expert witnesses?

Answer 8

Only the court is to determine preliminary questions of admissibility, including expert qualifications.

Question 9

May a jury be allowed to examine a learned treatise in its entirety?

Answer 9

NO - large risk of jurors looking at irrelevant sections. Specific passages can be read to jury by counsel OR witness

Question 10

Privileges and Immunities Elements

Answer 10

State passes law that treats NON-RESIDENTS differently
(If you see “resident” and “nonresident” language, pick privileges and immunities).

If issue is only dealing with state law, and the state law imposes same burden on both in-state and out of state corporations, it is OK (even if one of motives is protectionsitic)

Question 11

Procedures for sanctions requested based on the “claim not warranted by existing law or by non-frivolous argument establishing new law”

Answer 11

The moving party MUST serve the motion for sanctions separately, and may not actually file the motion if the issue is corrected within 21 days of service. (21 day rule does not apply if court is the party demanding proof of claims)

If party represented by counsel, only counsel will face sanction

Question 12

How do courts solve the problem of multiple tortfeasors where apportionment of wrongdoing cannot be established by plaintiff?

Answer 12

In this situation, the burden of proof shifts to D’s to show why they should not be wholly & severally liable

Question 13

How do courts handle liability for an independent contractor who engages in negligence at the behest of the hiring party?

Answer 13

Normally, only the independent contractor would be liable; however, because the dangerous condition was at the direction of the hiring party, they will also be liable for creating the dangerous condition

Question 14

Renewed JMOL standard of review?

Answer 14

Whether there is substantial evidence to support the verdict

(whether the verdict is against the weight of the evidence is the standard for a new trial)

Question 15

Evidence of Prior Bad Acts (NOT CONVICTIONS) admissible?

Answer 15

1. Allegations of prior bad acts unrelated to truthfulness ARE NOT ADMISSIBLE
2. Allegations of acts related to truthfulness are admissible BUT ONLY ON THE STAND - If W denies it, that is the end (no extrinsic E to contradict)

Question 16

Can police create an exigency and then act without a warrant?

Answer 16

Yes - so long as the the exigency was not created by illegal police action.

Question 17

Pure comparative Negligence Standard

Answer 17

Plaintiff’s damages reduced by P’s % of fault - can recover jointly/severally from D’s

Question 18

What are the criteria for a court to change its “final pretrial order”?

Answer 18

The court may only modify the final order to “prevent manifest injustice”

Question 19

Affirmative defense burden of proof

Answer 19

If a defendant asserts and affirmative defense, the burden of persuasion for that defense shifts to D

Question 20

When can a new trial be ordered when the prosecution withholds exculpatory evidence?

Answer 20

When there is a “reasonable probability” of a different outcome

Question 21

When are “hardship Variances” granted for potential zoning violations?

Answer 21

1. When the hardship arises from the way the land is currently zoned, AND
2. the variance will protect THE PUBLIC INTEREST

Question 22

Is an arrest warrant valid to gain entry into a targets home without a separate search warrant?

Answer 22

YES - if police have a valid “arrest warrant” for an individual, that warrant is sufficient to enter that particular persons home to effectuate an arrest IF there is reason to believe they are in the house.

Question 23

If a plaintiff brings a diversity action in federal court, does state law or the 7th Amendment determine eligibility for a jury trial?

Answer 23

7th Amendment jury rules apply - Federal rather than state law determines whether parties are entitled to jury trial where the federal court exercises diversity jurisdiction.

Question 24

In a diversity case, do FRCP rules apply or state rules apply when dealing with statute of limitations?

Answer 24

Statute of limitations laws of the STATE apply - NOT the frcp

Question 25

When must a “timely” objection to a witness statement be made by opposing counsel to preserve the issue for appeal?

Answer 25

The objection MUST be made immediately while the witness is on the stand - cannot wait for witness to be excused

Question 26

Name the 2 types of Manslaughter (NO INTENT NEEDED)

Answer 26

1. Voluntary Manslaughter
   Adequate provocation
   Heat of passion
   No time to cool off
   Imperfect self-defense (use of excessive force under the honest belief that it was needed for self-
   defense)
2. Involuntary Manslaughter
   Negligent conduct causing a death (parent neglecting a child is ALWAYS involuntary manslaughter)

Question 27

Name elements of Larceny

Answer 27

SPECIFIC INTENT
1. The trespassory taking
2. carrying away
3. personal property of another
4. With the intent to permanently deprive
(exception - continuing trespass - wrongfully take without permission but without intent to permanently deprive, then decide to keep/steal after the initial taking)

Question 28

Name elements of Burglary

Answer 28

SPECIFIC INTENT
1. Breaking & entering (fraud/force/trick all count as “breaking”)
2. Dwelling of another (modern is just building)
3. At night (modern trend deletes this)
4. With INTENT to commit a felony (intent must be present at moment of breaking - need not actually commit felony)

Question 29

Name elements of Robbery

Answer 29

SPECIFIC INTENT (larceny merges into robbery)
1. Trespassory taking
2. Carrying away
3. Property of another
4. By force, intimidation, or fear

Question 30

Name the elements of Assault (Criminal AND Tort)

Answer 30

Criminal Assault (SPECIFIC INTENT)
1. Intent to commit a battery
2. Intent to place another in imminent fear
3. WORDS ALONE NOT ENOUGH (and the other party must be aware of the threat)

Tort Assault (SPECIFIC INTENT)
1. Intent
2. Reasonable apprehension (knowledge of) an imminent battery

Question 31

Name the elements of Battery (Criminal AND Tort)

Answer 31

Criminal Battery (GENERAL INTENT)
1. The unlawful application of force to another (them or their extension)

Tort Battery (SPECIFIC INTENT)
1. Intent
2. Harmful or offensive contact (includes stuff attached to a person)

Question 32

Larceny by Trick vs False Pretenses

Answer 32

(SPECIFIC INTENT)
1. Larceny by Trick (obtain POSSESSION to the property by false statement) - default crime - possession of chattel
2. False Pretenses (obtain TITLE to the property by false statement) - tricks involving the transfer of CASH - 2-way sales.

Question 33

Name elements of Embezzlement

Answer 33

(SPECIFIC INTENT)
1. Lawful possession of personal property
2. Converted for own use (without permission)

Question 34

Name elements of Receiving Stolen Property

Answer 34

(SPECIFIC INTENT)
1. Physical possession of stolen property
2. Knowledge it was stolen
3. Intent to keep

Question 35

Name elements of Forgery

Answer 35

(SPECIFIC INTENT)
1. Fraudulent making of a false document
2. with legal significance
3. Intended wrongful use

Question 36

Name the elements of “Accomplice”

Answer 36

(SPECIFIC INTENT)
1. Specific intent to achieve the crime
2. Aid/Abet the completion of the crime (guilty for ALL crimes completed)

Question 37

Name elements of “Accessory before the fact”

Answer 37

(SPECIFIC INTENT)
1. Specific intent to achieve the crime
2. Aid/abet the completion of the crime
3. NOT present at the scene of the crime

Question 38

Name the elements of “Accessory after the fact”

Answer 38

(SPECIFIC INTENT)
1. Felony completed
2. Knowledge of the completed crime
3. Aid in avoiding arrest/conviction

Question 39

NAME THE GENERAL INTENT CRIMES

Answer 39

1. Battery
2. Arson
3. Rape
4. Kidnapping

Bonus (both voluntary and involuntary manslaughter)

Question 40

Name the elements of Arson

Answer 40

(GENERAL INTENT)
1. The malicious (reckless) burning of the DWELLING of another (knew or should have known that it could burn down) - requires “charring”
2. Modern trend moving towards “structure” instead of “dwelling”

Question 41

Name the elements of Rape

Answer 41

(GENERAL INTENT)
1. Unlawful sexual intercourse
2. By a male with a female
3. without consent

Question 42

Name the elements of Kidnapping

Answer 42

(GENERAL INTENT)
1. Unlawful restraint of a person’s freedom by force (person MUST be aware of confinement)

Question 43

Name the elements of Attempt

Answer 43

(SPECIFIC INTENT)
1. Intent to commit the crime
2. Take an overt act/substantial step (attempt merges into completed crime - cannot withdraw from attempt)

Question 44

Name the elements of Conspiracy

Answer 44

(SPECIFIC INTENT)
1. Two or more people (common law) (1 person ok under MPC unilateral theory)
2. Specific intent to commit the crime
3. Explicit agreement
Conspirator liable for all crimes committed in furtherance of the conspiracy unless affirmatively withdrawn prior to the crimes being committed - if crimes are not in furtherance of conspiracy (or foreseeable) then no liability
Conspiracy DOES NOT MERG with the final crime - you are guilty the moment you conspire. Withdrawal can only be accomplished via timely notice to other conspirators.

Question 45

Name the elements of Solicitation

Answer 45

(SPECIFIC INTENT)
1. Encourage, urge, incite, request another to commit a crime (merges into completed crime - cannot withdraw)

Question 46

Is there a “right” to a jury trial in a state CIVIL action?

Answer 46

NO - only federal courts provide the jury right for civil actions.

Question 47

Name the Insanity defenses and burden of proof

Answer 47

1. M’naghten Test -
   Mental Disease
   Cannot appreciate “nature & quality” of action
   Cannot understand what they are doing is wrong
2. MPC
   Defendant lacked “substantial capacity” to appreciate criminal conduct

INSANITY MUST BE PROVED BY CLEAR AND CONVINCING STANDARD

Question 48

Intoxication Defense (criminal law)

Answer 48

1. Voluntary intoxication is a defense to specific intent crimes (but getting drunk AFTER forming intent doesn’t count)
2. Involuntary intoxication is a total defense (you got drugged against your will/secretly)

Question 49

Mistake Defense (criminal law)

Answer 49

1. Specific intent crimes: Reasonable AND unreasonable mistakes are defenses (negates intent)
2. General intent crimes: Reasonable mistake is the only defense (jury evaluates whether reasonable)

Question 50

Impossibility Defense (criminal law)

Answer 50

1. Legal Impossibility: Always a defense (legally, it didn’t happen because elements were not satisfied)
2. Factual Impossibility: Never a defense (technically, you did it - statutory rape a good example)

Question 51

Entrapment Defense (criminal law)

Answer 51

1. When LEO starts or creates criminal activity
2. Defendant NOT predisposed to commit the crime (no history of such behavior)

Question 52

Duress Defense (criminal law)

Answer 52

1. Reasonably believe you are under threat of grave bodily harm or death
2. NEVER a defense to murder

Question 53

Self-Defense (and defense of others) Defense (criminal law)

Answer 53

1. Reasonable belief of imminent danger of bodily harm
2. Return same level of force
3. Deadly force only allowed in response to deadly force

Question 54

Defense of Property Defense (criminal law)

Answer 54

1. Reasonable force allowed to defend property
2. NEVER deadly force UNLESS a fear of being killed is present

Question 55

Name the 4 Elements required for search and seizure

Answer 55

1. Government action (can be government or at the direction of government)
2. Search (Government search of a location with a reasonable expectation of privacy - any “enclosure” bag/house)
3. Probable Cause (a reasonable person would conclude is it more likely than not that a crime has taken place - if police rely on an informant for probable cause, must have a history of reliability
4. Warrant (Generally, searches must be done pursuant to a warrant - Warrant must be (1) issued by a neutral magistrate, (2) facts must be fresh, (3) the person or places to be searched must be specific, (4) Police CANNOT exceed scope of warrant - once they find what they are searching for, SEARCH MUST STOP

Question 56

What is the “Plain View” doctrine?

Answer 56

1. Police can seize what is in plain view during a LAWFUL search (even if stuff unrelated to warrant)

Open Fields Doctrine: If something is out in the open/plain view - there is no expectation of privacy, thus - no search

Question 57

Will an illegal search automatically dismiss the indictment?

Answer 57

NO - but could prevent some evidence from coming in

Question 58

Protective Sweep - what can police do?

Answer 58

They can do a protective sweep to look for more bad guys (can only do if there is evidence of more bad guys)

Question 59

Name the Warrant Exceptions (10 of them)

Answer 59

1. Consent (if you own property OR have apparent control - consent valid)
2. Search Incident to LAWFUL arrest (can search person/wingspan of person - can search passenger compartment IF occupant is unsecured OR reasonable belief there is evidence OF CRIME OF ARREST)
3. Inventory Search (at police station after arrest - police can inventory)
4. Exigent Circumstances (reasonable belief that evidence may be lost or destroyed)
5. Auto Specific Rules:
   Illegal Stop (pretextual stop) - if this is the case, NOTHING found is admissible
   If ANY violation exists to make stop legal, then search is legal
   May investigate additional evidence of illegal activity IF in plain view or otherwise apparent (banging from
   trunk)
   Amber Alert Exception: If a car is labeled as an amber alert or otherwise tagged as carrying contraband - full
   search OK
6. Border Searches (no warrant necessary)
7. Searching outside the US (US official may search on foreign land without warrant)
8. Dog search (NOT a search IF in a public place)
9. Stop and Frisk (stop is allowed to talk where there is reasonable suspicion - Frisk only allowed if reasonable
   belief person is armed)
10. Vehicle checkpoints (Random/Subjective stops are NOT allowed - Standard procedure, like every 10th car, OK

Question 60

What are elements of Miranda?

Answer 60

1. Custodial (a reasonable person would not feel free to leave)
2. Interrogation (Questions designed to elicit incriminating response)

Question 61

Does a volunteered statement violate Miranda?

Answer 61

No - police can just sit there and if you spill, that’s on you

Question 62

Can you waive your Miranda rights?

Answer 62

Yes - but must be done knowingly and voluntarily

Question 63

How far does the right against self-incrimination extend?

Answer 63

1. Never required to testify/forced to make statements (can be forced to repeat arbitrary words in a lineup)
2. May be required to perform physical acts/demonstrations
3. Providing documents does NOT fall under this

Question 64

Lineups & ID’s (protocol and right to counsel)

Answer 64

1. Lineups cannot be unnecessarily suggestive
2. NO right to counsel PRIOR to indictment/charging
3. Right to counsel AFTER indictment/charging

Question 65

Right to Counsel (5th vs 6th Amendment)

Answer 65

1. 5th Amendment right to counsel BEFORE charges/indictment (charge agnostic)
2. 6th Amendment right to counsel AFTER charges/indictment (charge specific)

Question 66

Can you waive the right to counsel?

Answer 66

Yes - but must be done knowingly

Question 67

Right to counsel (critical vs non-critical stages)

Answer 67

GENERAL RULE ONLY:
1. Most post-indictment proceedings you have a right to counsel
2. Most pre-indictment proceedings you DO NOT have a right to counsel

Question 68

Can co-defendants share counsel?

Answer 68

Yes, so long as there isn’t a conflict of interest

Question 69

What is the “Boast Defense”?

Answer 69

If undercover cop goes into cell and brags in attempt to get suspect to incriminate self, that violates right to counsel (NOT MIRANDA)

Question 70

When do you have a right to a Jury trial, and what are the parameters?

Answer 70

FEDERAL = 7th Amendment right to Jury
1. Possible sentence longer than 6 months
2. Jury must be cross-section of the community
3. State trial - if jury of 6, must be unanimous
4. State trial - if jury of 12, doesn’t need to be unanimous
5. Federal trial must be unanimous (state does not)
6. Minimum of 6 jurors (D can agree to less than 12, but not less than 6)
7. Jurors CANNOT be excluded based on race/gender (violates equal protection)
8. Demand for jury trial must be made within 14 days of service of last pleading

IF ASKING FOR INJUNCTION - NO RIGHT TO JURY!

Question 71

Does D have a right to a public trial?

Answer 71

Yes, and press usually has access unless judge has overriding interest to close trial

This does NOT apply to grand jury proceedings

Question 72

What is the procedural burden of proof for each side in a criminal trial?

Answer 72

1. Prosecution must prove ALL ELEMENTS beyond a reasonable doubt
2. Defense needs to prove by Preponderance of the evidence (affirmative defense)
3. NO MANDATORY PRESUMPTIONS IN CRIMINAL CASES

Question 73

General rights of D in regards to Grand Juries

Answer 73

1. D has NO right to know about grand jury investigation
2. D has NO right to be present
3. Exclusionary rule doesn’t apply (all evidence can be used, even illegally obtained evidence)
4. Grand jury witness has not right to counsel in the room

Question 74

How is “cruel and unusual” punishment determined?

Answer 74

The punishment MUST be proportional to the crime and consistent with punishment for similar crimes

Question 75

Death penalty procedure and limitations

Answer 75

1. NOT cruel and unusual as long as procedural safeguards to prevent arbitrary/discriminatory sentencing
2. Cannot execute anyone under 18 at the time of the crime
3. Cannot execute the mentally challenged

Question 76

What is “Double Jeopardy”?

Answer 76

1. Cannot be tried for the same crime twice (however, different sovereigns can try for same crime… so different states and the feds could try same crime… but local municipalities don’t qualify)
2. Double jeopardy does NOT apply to anything that occurs BEFORE first trial
3. Double jeopardy attaches: (Jury Trial - when jury is sworn and empaneled) / (bench trial - when first witness is sworn in
4. There MUST be a final judgment on the merits for double jeopardy to apply (settlements, voluntary dropping case without prejudice, default judgments are NOT final)
5. If D appeals, they can be retried, AND if there is a mistrial for necessity, they can be retried

Question 77

Can you be retried when the 2nd trial requires an element that D was acquitted over in the first trial?

Answer 77

NO - this is collateral estoppel - If you are charged with “felony murder” but you are acquitted of the underlying felony, then felony murder cannot be retried because the dependant felony no longer exists

Question 78

What is “fee simple absolute”?

Answer 78

100% ownership forever

Question 79

What is a “life estate”?

Answer 79

1. Rights and control for life
2. Cannot commit waste
3. “O to A for life”
4. Can convey life estate to another, but it will end when A’s life ends
5. Reversion (life estate going back to grantor)
6. Life tenant owes the interest on the mortgage and taxes (principal is responsibility of grantor)

Question 80

What is a “remainder”?

Answer 80

Interest AFTER a life estate (that goes to someone other than original grantor)
Example: “O to A for life, THEN TO B”

Question 81

What is a “vested remainder”?

Answer 81

When the remainder will AUTOMATICALLY transfer
Example: “O to A for life, THEN TO B (B has a vested remainder because he will automatically get it)

Question 82

What is a “contingent remainder”?

Answer 82

Contingent transfer on something happening
Example: “O to A for life, then to B IF B IS MARRIED (if not, reversion to O)

Question 83

What is a “vested remainder subject to open”?

Answer 83

Remainder that conveys to a “class” if the class exists
1. Refers to a class of people
2. One must be alive
3. Class “closes” when first person in the class takes (so, only children alive at time for instance)
4. “O to A for life, THEN TO B’s CHILDREN”

Question 84

What is a “vested remainder subject to total divestment”?

Answer 84

1. “O to A for life, then to B, but if B has no kids, THEN TO C”
2. If B doesn’t have kids, then B is totally divested of interest

Question 85

What is a “Fee Simple Determinable”?

Answer 85

1. “So long as” / “as long as”
2. Grantee must use property in a certain way
3. If the condition violated, IT GOES BACK TO GRANTOR AUTOMATICALLY (possibility of reverter)
4. CANNOT place a total ban on future conveyance of property (limited bans with conditions OK)

Question 86

What is a “Fee simple subject to condition subsequent”?

Answer 86

1. If a future event occurs, the grantor has a right of reentry
2. “But if”
3. “O to A, but if you do X, then O gets it back”
4. This is known as “right of reentry”, but it must be asserted (not automatic)

Question 87

What is the “Rule against perpetuities”?

Answer 87

1. Interest must vest within 21 years of the life in being (life must be somehow related to transaction)
2. Is there a chance that the right could vest within that range? If so, no RAP violation (generally within 100ish years)

Question 88

What are elements of a “joint tenancy”?

Answer 88

1. Has “right of survivorship” - this trumps a will because property passes to other party upon death
2. 4 Unities needed: Same time, Same instrument, equal shares, both have full use
3. Mortgages: (Lien theory - 1 party CAN mortgage) (title theory - can’t mortgage because it conveys title)
4. Conveyance by 1 party destroys joint tenancy and converts to tenancy in common (if both joint tenants jointly convey an equal share to a 3rd party, they remain joint tenants and 3rd party is tenant in common).

Question 89

What are elements of “Tenants in common”?

Answer 89

1. NO right of survivorship
2. Can own unequal shares
3. ALL entitled to full use of the property
4. CAN be passed via a will

Question 90

What are elements of “Tenants by the entirety”?

Answer 90

1. Right of survivorship
2. Joint tenancy by MARRIED people
3. No conveyance (or mortgage) without consent from BOTH parties
4. Severed by divorce
5. Very shielded - personal debt of one tenant cannot be enforced against the property

Question 91

What is “ouster”?

Answer 91

When one tenant wrongfully forces another off the property (joint tenants/tenants in common have right to use the whole property unless ousted)

Question 92

What is a “partition”?

Answer 92

1. In the event join tenants/tenants in common cannot agree, court can divide the property between the interest holders
2. This is granted unless impractical - in that case, forced sale and distribution of proceeds to parties)

Question 93

Property contribution rules for Mortgage/Tax payments

Answer 93

1. Co-tenant may seek contribution
2. Sole possession - only recover amount that exceeds market value

Question 94

Property contribution rules for Rent to a “tenant”

Answer 94

1. Out of possession co-tenant may SHARE in rent and profits
2. But NOT from an owner tenant in possession (who is living there)
3. UNLESS they are damaging the property

Question 95

Property contribution rules for Repairs

Answer 95

Co-tenant may only seek contribution for “necessary” repairs

Question 96

Property contribution rules for Improvements

Answer 96

1. No contribution for improvements, unless they increase rents/profits
2. If increases property value, party paying for improvements can recover equity during sale event

Question 97

What is a “periodic tenancy”?

Answer 97

1. Defined period (month to month, year to year)
2. Automatically renews (NO definite end date)
3. Notice required to terminate (month to month, 1 month notice / year to year, usually 6 months notice, but residential usually 1 month)

Question 98

What is a “tenancy for years”

Answer 98

1. Tenancy with a defined start and end date (typical lease)
2. NO notice required, because lease has an end date

Question 99

What is a “tenancy at will”?

Answer 99

1. No defined period
2. Terminable at will by either party
3. Reasonable amount of time for notice to terminate

Question 100

What is a “tenancy at sufferance”?

Answer 100

1. Holdover tenant
2. Bound by original terms of lease UNLESS landlord notified of new price PRIOR to holdover - then new price

Question 101

List the 4 main landlord duties

Answer 101

1. Must give actual possession of property on first day of lease term - if not, LEASE IS DONE
2. Repairs - duty for basic repairs beyond the scope of what a tenant could do - NON SIMPLE FIXES
3. Warranty of Habitability - Property must be fit for habitation (running water, sewer, etc.) - if not, provide notice to landlord and if not fixed tenant can withhold rent, pay for repairs themselves and sue for reimbursement, etc.
4. Warranty of quiet enjoyment - landlord must be sure you are able to enjoy the land (for instance, to be free from landlord using part of the space you are entitled to… if they use it, and you provide notice and they refuse to fix issue, you can vacate (constructive eviction)

Question 102

What are the 2 Tanant duties?

Answer 102

1. Pay rent (if landlord violates warranties or property destroyed, this can be excused)
2. No waste (avoid destroying property, don’t allow problems to persist that cause destruction)

Question 103

Assignments VS Subleases and their Enforcement

Answer 103

1. Assignment (when you assigned the rest of the lease term to a 3rd party)
   New tenant is directly liable for landlord (original remains secondarily liable unless novation with landlord)
2. Sublease (give away a portion of the lease only - not entire remaining amount)
   3rd party tenant pays to original tenant who pays landlord and deals with issues. Original tenant liable unless novation with Landlord
3. Lease terms are strictly enforced (if it says “no assignment” only, then you can sublease and vice versa)
4. Landlord can assign rent payment to someone else - but 3rd party must provide tenant notice of where to send money

Question 104

Fair Housing act limitations in relation to landlord/tenant?

Answer 104

1. Prohibits discrimination in the sale/financing of homes/property based on (race, color, religion, sex, disability, family status, or pregnancy)
2. Doesn’t apply to small property owners who only own 3 or less residential rental properties, or a 4 party duplex in which the property owner also lives

Question 105

How are “fixtures” handled in landlord/tenant law?

Answer 105

1. Fixtures are “chattel” (moveable property) that are fixed/installed on the property
2. If removal of chattel would cause damage, that is a “fixture” and removal is generally not allowed (unless bargained for in the lease)
3. For commercial spaces, it is assumed the business will remove fixtures they installed

Question 106

What law controls in a property dispute?

Answer 106

1. If regarding physical property, the law of the location of the property governs (absent choice of law clause)
2. If dealing with an encumbrance on the land like a mortgage, then local law of the state applies

Question 107

What is an “easement”?

Answer 107

A right to use someone else’s land
1. Easement appurtenant - 1 parcel of land benefits another parcel of land
2. Easement in gross - a persona has a right to use someone else’s land

Most easements (aside from easement by necessity) LAST FOREVER unless expressly terminated

Question 108

What is an “express easement”?

Answer 108

A written agreement granting the easement

Question 109

What is an “easement by prescription/prescriptive easement”?

Answer 109

Like adverse possession (but no need for “exclusive use”)
1. Open & notorious
2. Actual
3. Continuous
4. Hostile (without permission)

Question 110

What is an “easement by implication”?

Answer 110

1. You own 1 piece of land, you walk across the land for 20 years… you then divide the land and sell off a parcel - there is an implied easement that you will be able to continue walking across that part of the land
2. If you sell someone a piece of land that is locked into your parcel, they have an implied easement to exit the land - this implied easement location is at their discretion

Question 111

What is an “easement by necessity”?

Answer 111

1. A has to use the property to get off the land
2. Example: There is no way to road without cross the land (this ends when necessity ends)

Question 112

What is the difference between a positive and a negative easement?

Answer 112

Positive easements can grant rights to do things with land, while negative easements can prevent doing things with land (like building a tall building) - negative are rather uncommon

Question 113

How long do easements last?

Answer 113

Most easements last forever unless terminated
1. Easement appurtenant run with the land
2. Easement in gross stay with the original parties (For a business, the easement in gross will stick as well even if granted to 1 person originally when the business is sold)
3. Easements by necessity will end when the necessity ends

Question 114

How are easements terminated?

Answer 114

1. Agreement
2. Time (easement could only run for X amount of time)
3. Merger (both properties come under common FEE SIMPLE ownership, easement extinguished
4. Abandonment (must leave and explicitly state or show intent not to return - mere disuse not enough)

Question 115

What is a real estate “covenant”?

Answer 115

1. A promise for a promise (like a contract)
2. ALWAYS in writing
3. Can be positive or negative
4. Generally lasts forever and runs with the land

Runs with land IF: Writing, Intent, Notice, Privity, Touch & concerns the land (about use of property)
If assigned to a person because of a personal reason, doesn’t run with the land (you love to swim, so YOU can use my pool)

Question 116

What is a “equitable servitude”?

Answer 116

Basically a restrictive covenant that seeks equitable relief

Question 117

What is a “Common Scheme” restriction? (implied reciprocal servitude)

Answer 117

1. Common development scheme restriction MUST exist from the outset of the development
2. Restrictions will continue unless there is a total change in the TOTAL profile of the community (the WHOLE community must change, not just a portion of it), OR if original grantor neglects to enforce it (abandonment)

Question 118

What is a “license” in property law?

Answer 118

1. Permission/right to enter the property
2. Revokable at will (unless coupled with some type of “interest”)
3. License can be used to defeat a prescriptive easement attempt (permission negates the “hostile” element)

Question 119

What is a “profit” in property law?

Answer 119

1. The right to come onto the land and take something off the land (harvest minerals, fruit, deer, etc.)
2. A “profit” that came with a property CANNOT be individually assigned to a 3rd party, only available to the owner of the dominant estate that has the “profit” (if I own a hunting lodge with a “profit” to hunt on your land, I can then assign that right to a 3rd party unless I give them the entire dominant estate.

Question 120

What is a “Government Taking” in property?

Answer 120

1. Government can take private property for public use
2. Must provide “just compensation” which is fair market value

Question 121

What are the general rules for “water rights”?

Answer 121

1. Must be “reasonable use” (lake/pond/stream)
2. If water coming from sky (rain/snow), owner can use reasonable means to alter the flow even if this causes harm downstream (so long as it was reasonable)

Question 122

How are “crops” handled in property?

Answer 122

1. If the crops are naturally occurring on the property, they are part of the “real property” and will go with land title
2. If you are “planting” something, then that is called “personal property”
3. There are 2 exceptions: (express agreements on how to handle crops AND tenants with right to harvest)

Question 123

Describe the property “support rights”

Answer 123

1. Adjoining UNDEVELOPED land (strict liability for damages)
2. Adjoining DEVELOPED land (strict liability for damage if would have happened anyways… if damage is because of the development on the land, then damage must have been caused by negligence)
3. Digging on adjoining land (negligence for damage - you let someone dig under land and cause collapse)

Question 124

What is a “private nuisance”?

Answer 124

1. Unreasonable interference with use & enjoyment (loud music)
2. Reasonable person standard (overly sensitive people not counted)

Question 125

What is a “public nuisance”?

Answer 125

1. Nuisance affects public at large (usually enforced by government officials)
2. If private plaintiff, must prove special damages

Question 126

Name the 3 types of common interest owned communities

Answer 126

1. Property owners association/HOA (owners required to belong to association and pay dues)
2. Condominiums (you own inside of condo, share ownership of common areas as tenants in common)
3. Co-Op (corporation owns entire building under 1 mortgage and all people living there lease as “shareholders” - tenants must pay their share of fees, taxes, and mortgage)

Question 127

What is the “real estate sales contract”?

Answer 127

1. The document that conveys equitable title to the property (deed conveys legal title at closing)
2. MUST BE IN WRITING (unless partial performance -payment/improvements/possession - need 2/3)
3. Writing must have: Price, parties, basic description, signed by party to be charged

Question 128

When does the buyer bear the risk of loss on a real-estate transaction?

Answer 128

When the CONTRACT is signed - equitable conversion occurs and risk of loss passes to buyer unless agreed otherwise (GET INSURANCE IDIOT!)

Question 129

What is “marketable title”?

Answer 129

1. Implied covenant to convey title free of encumbrances
2. Seller can clear up mortgage at time of closing with proceeds from the sale
3. Liens, mortgages, zoning violations, adverse possession without quieting title, all make title unmarketable

Question 130

Is time of the essence in real-estate contracts?

Answer 130

NO, unless specifically stated. If not stated, then reasonable allowances (months) to finish deal beyond stated closing date

Question 131

What happens to the real estate contract when the deed is signed?

Answer 131

The contract merges into the deed and ceases to exist - deed alone controls from here forward

Question 132

What is the “duty to disclose” in property?

Answer 132

1. Seller must disclose material defects that cannot be seen by the buyer
2. Defects the seller knows or should know MUST be disclosed

Question 133

Name the 4 types of Murder

Answer 133

1. Intent to kill MURDER (premeditated killing, SPECIFIC INTENT)
2. Intent to inflict serious bodily harm MURDER (no specific intent to kill, but intent to inflict harm)
3. Felony Murder (death occurs while committing a dangerous felony - BARRK)
4. Depraved Heart/Reckless Murder (reckless disregard for human life - knew/should have known someone could die and you did it anyways).

Question 134

Difference between Negligent and Reckless standard in murder/manslaughter

Answer 134

1. The presence of “people” - if your action was very likely to endanger people, and you knew or should have known and did it anyways - that is reckless… if not, negligent
2. Foreseeable people present = reckless, not foreseeable people present = negligent

Question 135

What is a “purchase money mortgage”?

Answer 135

1. The money used to originally purchase the property
2. Purchase money mortgages ALWAYS get priority when competing - get paid back first (assuming proper recording) - EVEN HAS PRIORITY OVER PRIOR ISSUED JUDGMENT LIENS!

Question 136

What is “redemption” and what are the 2 types in property law?

Answer 136

1. Paying off the debt to prevent foreclosure
2. Equitable redemption (from the notice of foreclosure until the auction - bank MUST accept/cannot be waived)
3. Statutory redemption (NOT automatic | period of time AFTER foreclosure defined by statute

Question 137

What is the “lien theory” of mortgages? (majority view)

Answer 137

1. Bank only has a lien
2. owner holds title
3. owner can sell/transfer title

Question 138

What is the “title theory” of mortgages? (minority view)

Answer 138

1. Bank holds the actual title (if joint tenants get a title theory mortgage, it severs joint tenancy)
2. Owner only has equitable interest to live there
3. owner cannot sell without bank consent

Question 139

What does “assuming a mortgage” mean?

Answer 139

1. new buyer takes over payment to bank
2. original owner remains secondarily liable UNLESS novation executed with bank

Question 140

What does taking “subject to mortgage” mean?

Answer 140

1. Original owner remains liable for payment
2. BUT, bank can foreclose on new owner if original owner defaults

Question 141

What is the default mortgage priority in a foreclosure?

Answer 141

1. Mortgages taken out after foreclosing party get wiped out (must provide notice to junior mortgages)
2. Downstream junior mortgages can join suit (if they don’t, their claims are eliminated) - if foreclosure amount is not sufficient, then junior mortgages will be able to go for personable liability to recover the deficiency from O
3. Senior mortgages survive (foreclosure buyer takes subject to them)
4. ALL mortgages can be wiped out if BFP takes property without any notice of mortgages

Question 142

What is a “deficiency judgment”?

Answer 142

The bank can recover the remaining money owed not covered by the foreclosure sale (if excess money from foreclosure sale, that goes to owner once debts are satisfied)

Question 143

How does an “installment land contract” work?

Answer 143

1. Title is transferred when the entire balance is paid off
2. If buyer misses a payment, seller can retake property (unless a rule states otherwise)

Question 144

What is the function of the “deed”?

Answer 144

It transfers LEGAL title on the day of closing

Question 145

What are the warranties present in a deed?

Answer 145

Present warranties:
1. Warranty of Siesen (promising that I actually own the property)
2. Right to convey
3. Covenant against encumbrances
IF THESE ARE BREACHED - IT HAPPENS AT TIME OF CLOSING/CONVEYANCE

Future Warranties (last forever):
1. Quiet enjoyment (grantee will not be bothered by future claims)
2. Warranty (seller will defend against future claims)
3. Further assurances (I will fix any issues in the future)

Question 146

What are the 3 types of Warranty deeds?

Answer 146

1. General Warranty Deed (promises that everything has always been OK, up to and including my ownership)
2. Special warranty deed (promises that everything under my ownership is OK, but prior to that, no promises)
3. Quitclaim Deed (NO PROMISES AT ALL - very risky, usually between family or business partners)

Question 147

What are the formalities for the transfer of a deed/title?

Answer 147

1. Writing (the deed/title transfer must be in writing to satisfy the SOF)
2. Delivery (delivery of the deed must occur from the seller to the buyer - physical delivery not necessary… what matters is the INTENT of the grantor… if grantor intends delivery, it is delivered)
3. Acceptance (acceptance is presumed unless facts state otherwise - buyer/grantee must explicitly reject)
4. Description of property (deed must contain legal description that is reasonably definite to identify property)
5. Identifiable grantee (specific person(s) must be identified as grantee)

Question 148

Can you transfer a title by will? if so, what are some common issues?

Answer 148

1. Yes, you can transfer a title by will (if no will, passes by intestacy)
2. Ademption (if you leave land in a will but then sell it to someone else before you die, person in will gets nothing
3. Lapse (if you leave you property in will, and you die before I do, then you/your heirs don’t get it and it goes into residuary estate)
4. Exoneration of liens (if there are liens on the land left in the will, the estate will pay the liens so you can get property)

Question 149

What is “adverse possession”?

Answer 149

Squatter can acquire title via adverse possession IF following elements are met regarding occupation of land:
1. Continuous (“tacking” - is a squatter gives “title” to another squatter willingly, the clock keeps running, but if another squatter evicts the original squatter, then tacking doesn’t apply and clock is reset)
2. Actual
3. Open & Notorious (obvious so a reasonable person would know)
4. Hostile (without permission)
5. Exclusive (not sharing with true owner)

Question 150

Can non-attorneys draft deeds/land sale contracts and other documents?

Answer 150

1. Yes, they can draft documents/use form documents
2. CANNOT GIVE LEGAL ADVICE!

Question 151

What is an “agent signing” in property? (equal dignities rule)

Answer 151

If an agent is signing, then there must be written authority for the agent to sign on your behalf (exceptions: officers of a corp who already have signing authority AND someone who is designated ONLY to sign at grantor’s request).

If there is a lack of writing, the grantor cannot use that as a defense if they tricked grantee into not writing

Question 152

What is a “bona fide purchaser for value”? (BFP)

Answer 152

1. Pay for property (does NOT include gift, will or adverse possession)
2. Take property WITHOUT notice (no actual, inquiry, or constructive notice)

(creditors are NOT BFP’s, but Mortgagors ARE BFP’s!)

Question 153

Name the 3 types of recording statutes

Answer 153

1. Race (first person to record wins)
2. Race-Notice (first BFP who records wins ) - “first recorded”
3. Notice (Last BFP Wins) - “subsequent purchaser for value without notice”

Question 154

What is the “shelter rule”?

Answer 154

Someone who would normally lose in a title dispute will win because they will “shelter” under former BFP
1. Basically, the “shelter” party will win against anyone who the BFP they took from would have won against

Question 155

What is a “wild deed”?

Answer 155

When there is a recorded deed that is outside the normal chain of title for some reason (recording error)

Question 156

What is an “after acquire title”? (also called deed by estoppel)

Answer 156

If the grantor acquires title AFTER closing, title will pass automatically to the grantee

Question 157

What are the rules for “lay witnesses” in a trial?

Answer 157

1. Regular people testifying at trial
2. Must have “personal knowledge”
3. Cannot come to legal conclusions
4. Can testify to their perceptions (speed, weather, etc.)
5. Oath or affirmation to be truthful OK
6. Children can be witnesses (so long as they understand the difference between truth and lies)

(A judge or the jury CANNOT testify in trial)

Question 158

What are the rules for “expert witnesses” in a trial?

Answer 158

The party must prove that the expert is qualified
1. Must have foundation laid (showing credentials, publications, etc.)
2. Can give expert opinion based on outside material (treatises, other stuff not admitted to E)
3. CAN give legal conclusions
4. CAN be cross-examined
5. In CRIMINAL case, experts CAN’T testify to mental state or intent element of criminal charges

Question 159

What type of control must the court have when a witness is on the stand?

Answer 159

Reasonable control to ensure witnesses are examined to tell the truth. Can take reasonable steps to prevent wastes of time or witness embarassment

Question 160

Can you ask a witness “leading questions”?

Answer 160

Generally no, however, you CAN IF:
1. Cross-examination
2. hostile witness
3. adverse party
4. shy witness/child
5. Jog memory
6. lay foundation

Question 161

What are the rules for refreshing memory/recollection?

Answer 161

1. May show ANYTHING to the witness (witness then testifies once memory refreshed)
2. but NOT read it into evidence (opposing party COULD have it admitted if they wished)

Question 162

When are witnesses “excluded”?

Answer 162

Generally, one witness cannot be in the courtroom to hear another witness testify, UNLESS:
1. they are a party or party representative
2. statute allows
3. they are needed

Question 163

Contrast the role of a judge vs the role of a jury in a trial

Answer 163

Judge determines (rules of law + admissibility)
Jury determines (questions of fact + weight)

Question 164

Contrast “objections” vs “offers of proof”

Answer 164

1. Objections to admission - something comes in and you are objecting to it (timely + grounds/reasoning)
2. Offer of proof - something was excluded, you are objecting to exclusion (used to preserve appeal)

Question 165

What is the “burden of production”?

Answer 165

1. Plaintiff/prosecution must prove each element
2. Once this occurs, shifts burden to defense

Question 166

What is the “burden of persuasion” in a criminal vs civil trial?

Answer 166

1. Civil case (preponderance of evidence - 51%)
2. Criminal case (beyond a reasonable doubt - 99%)

Question 167

What is a “presumption” in a trial?

Answer 167

A conclusion the judge MUST come to once the party meets their burden

Question 168

What is a “rebuttable presumption”?

Answer 168

1. if the presumption is rebutted with evidence - jury MAY conclude
2. If the presumption is not rebutted at all - jury MUST conclude

Question 169

What is a “conclusive presumption”?

Answer 169

1. When no contrary evidence can be produced/offered (frequently used for judicial notice of facts)
   (example - text of a statute - can’t argue with that)

Question 170

When is impeachment of a witness on the stand allowed?

Answer 170

1. Usually allowed so long as it attacks CREDIBILITY (credibility and impeachment are synonyms for witnesses)
2. If you see the term “character” - that is usually related to DEFENDANT, not witness
3. If trying to attack what a witness said, ALMOST ALWAYS COMES IN (can attack for truth, inconsistency, bias, etc.)
4. If the D themselves is on the stand, they are a WITNESS at this point and can be impeached

Question 171

Rules for asking the DEFENDANT witness about prior convictions/bad acts

Answer 171

1. Prior felony conviction (unrelated to truthfulness - MAY come in)
   Felony conviction in last 10 years and pass balancing test for probative/fairness
2. Prior conviction regarding truthfulness (WILL come in)
   Felony OR misdemeanor (proved by reputation, opinion, specific acts, extrinsic E, etc.)
3. ALLEGATION of prior bad act unrelated to truthfulness (without conviction)
   NOT ADMISSIBLE
4. ALLEGATION of prior bad acts related to truthfulness (without conviction)
   YES, but ONLY on the stand… if W denies, that is it… not extrinsic E allowed to rebut the denial

Question 172

What is a “collateral matter”?

Answer 172

1. Something not relevant to the case
2. CANNOT be used to impeach

Question 173

When is something admissible as substantive evidence AND to impeach?

Answer 173

When the statement alone is ALSO a hearsay exception - then comes in as both

Question 174

What is “relevant evidence”?

Answer 174

1. has ANY tendency to make a fact more or less probable
2. Generally ADMISSIBLE
3. Relevant evidence can be excluded IF: (probative vs fairness test)
   Unfraily prejudicial
   Misleads or confuses the jury
   Causes delay

Question 175

Discuss authentication of Evidence and requirements

Answer 175

1. Authentication serves to show that E is what is purports to be (used for docs, writings, objects, specimens, etc.)
2. How do you authenticate? (direct testimony, special markings, testimony WITH PERSONAL KNOWLEDGE)
3. Self-Authenticating documents: (Look for an official/notarized doc or published newspapers, magazines, etc.)

Question 176

Who does “character evidence” apply to?

Answer 176

The DEFENDANT (NOT a 3rd party witness - that would be “credibility/impeachment”)

Question 177

Is “character evidence” admissible?

Answer 177

Generally NO (unless exception) because too prejudicial
1. Specific bad things the D did in the past (as it relates to character)

EXCEPTIONS:
1. Civil cases - WILL be admissible WHEN IT IS ISSUE IN THE CASE (proved by reputation, opinion, SPECIFIC ACTS)
Defamation (libel/slander)
Child custody
Negligent entrustment/hiring
Misrepresentation/Fraud

2. Criminal cases - ONLY when D opens the door with E of good character (proved by reputation or opinion ONLY)
   D can introduce evidence of good character (peaceful/honest) - must be related to crime (no specific acts). Once this is done, the prosecution can rebut

Question 178

When is “character evidence” admissible under the MIMIC rule?

Answer 178

Character evidence IS admissible to show:
1. Motive
2. Intent
3. Mistake (absence of )
4. Identification
5. Common plan or scheme

DO NOT use MIMIC in an answer UNLESS they talk about one of these categories in the facts of question

Question 179

Is “character evidence” admissible self-defense/child molestation/abuse cases?

Answer 179

1. Self-defense (defendant CAN show plaintiff was the initial aggressor)
2. Child abuse (other SPECIFIC INSTANCES are admissible)

Question 180

Is habit evidence/routine practice admissible?

Answer 180

Admissible IF habit is done ALL THE TIME (automatically - like brushing teeth)

Question 181

Discuss the Attorney/Client Privilege

Answer 181

1. Must be a “relationship” between client and attorney
2. Privilege is held by CLIENT (applies to attorney and anyone working for them)
3. Communications must be confidential (expectation of privacy)
4. Work product privileged IF related to legal work on case (stuff like billing statements isn’t privileged)
5. Privilege lasts FOREVER
6. If waived, must be waived voluntarily

EXCEPTIONS:
1. If you try to get advice on how TO commit a crime - not covered by privilege
2. If there is a dispute between the lawyer and client - no privilege

Question 182

Discuss the Doctor/Patient privilege (STATE ONLY - NOT FEDERAL PRIVILEGE)

Answer 182

1. Statements related to diagnosis or treatment
2. Must be made with intent they be private
3. Privilege applies to all healthcare providers/people involved in care

EXCEPTIONS:
1. Patient puts his condition at issue (personal injury claim, medical malpractice claim, etc.)
2. Dispute between doctor and patient

Question 183

Discuss the marital communications privilege

Answer 183

Marital Communications Privilege
1. Protects confidential information DISCLOSED DURING MARRIAGE
2. Applies in CRIMINAL and CIVIL
3. Must be legally married at time communication was made (privilege survives divorce)
4. Either spouse can prevent the other from disclosing the communications
5. Both spouses must agree for waiver

EXCEPTIONS:
1. Statements about future crimes
2. Statements about spousal or child abuse

Question 184

Discuss the spousal testimonial privilege

Answer 184

1. Witness spouse CAN REFUSE to testify
2. CRIMINAL TRIAL ONLY
3. Must be married at time of trial/testimony
4. Covers events before OR during marriage
5. ENDS with divorce
6. Witness spouse holds the privilege

EXCEPTIONS:
1. Statements about future crimes
2. Statements about spousal or child abuse

Question 185

Discuss what judicial notice is and how it works

Answer 185

Court takes “notice” of a fact and then neither party has to “prove” it going forward.
1. Any evidence NOT subject to dispute (no opinions)
2. Judge MAY take notice whether requested or not, but MUST take notice if requested by either party
3. Judges MUST take notice of federal or state law (and MAY take notice of foreign law or municipal ordinance)
4. Civil case: Jury MUST accept as conclusive
5. Criminal case: Jury MAY accept as conclusive

Question 186

Are “subsequent remedial measures” admissible?

Answer 186

Evidence that something was fixed after an accident:
1. NOT admissible to show negligence (public policy - we want to encourage fixing stuff)

EXCEPTION:
1. IS admissible to show OWNERSHIP/CONTROL of property/land

Question 187

Is evidence of liability insurance admissible?

Answer 187

1. NOT admissible to show negligence
2. MAY be admissible to show bias, ownership, etc.

Question 188

Are offers to compromise/settle admissible?

Answer 188

1. NOT admissible for public policy reasons (we want to encourage settlement)
2. There MUST be a “dispute” between parties (usually this means legal dispute has been initiated)
3. Offer to compromise + admission of guilt (WHOLE THING IS INADMISSIBLE)

NOTE: Watch for an admission of guilt BEFORE a “dispute” has actually happened… THAT is admissible as admission of party opponent and is NOT an offer to settle

Question 189

Are offers to pay medical expenses admissible?

Answer 189

1. NO - not admissible for public policy reasons (we want to incentivize charity)
2. HOWEVER; if offer to pay medical expenses is made with an admission of guilty, the admission will be severed from the offer to pay AND ADMISSION OF GUILT WILL BE ADMISSIBLE!

Question 190

Are plea statements and negotiations admissible?

Answer 190

NO!

Exception: could be admissible IF coupled with another admissible statement + fair to do so (rare)

Question 191

Is past sexual conduct of the victim admissible?

Answer 191

1. NOT admissible to show other sexual behavior or sexual predisposition

EXCEPTION:
1. Criminal Cases: Admissible if (1) shows consent, (2) protects D’s constitutional rights, (3) source of physical Evidence
2. Civil cases: ONLY admissible if probative value outweighs prejudicial effect

Question 192

What is the “best evidence rule”?

Answer 192

1. The best evidence is the ORIGINAL (document, writing, recording, etc.)
2. If the original is LOST, copy can be used if: Copy is authenticated (presumed authentic unless evidence of tampering)

The best evidence rule applies in 2 scenarios:
1. To prove the actual contents of a document (wording of a clause, etc.)
2. To prove the testimony being given (I was at X location, here is a stamped ticket I got)
IF THERE IS OTHER EVIDENCE TO PROVE X, THEN BEST EVIDENCE RULE DOESN’T APPLY

Question 193

What is the “completeness rule”?

Answer 193

If 1 party admits part of a writing (recording, whatever), then the other party can require the rest of the writing to be admitted into evidence for fairness/context

Question 194

What is “hearsay” and is it admissible?

Answer 194

1. Generally NOT ADMISSIBLE!
2. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted (declarative/assertive statement that is made out of court)

When is it NOT offered for truth of the matter asserted (thus not hearsay)?
1. Words of Offer & Acceptance
2. Libel or Slander
3. Verbal acts to show motive/notice

Question 195

Name the 11 Hearsay exceptions where availability of Witness is irrelevant

Answer 195

1. Present sense Impression
2. Excited utterance
3. Then existing mental/emotional/physical state of mind
4. Business records
5. Statement for medical diagnosis or treatment
6. Recorded recollection
7. Public records
8. Absence of business/public records
9. Learned treatise
10. Ancient documents
11. Catch-all (can come in if material, trustworthy, in interest of justice)

Question 196

Name the 3 hearsay exceptions where unavailability is required

Answer 196

1. Dying declaration
2. Statement against interest
3. Former Testimony

Question 197

Discuss the “present sense impression” hearsay exception

Answer 197

1. Availability irrelevant
2. Statement made while observing fact
3. non-emotional observation
4. Made at time the impression was perceived

Question 198

Discuss the “excited utterance” hearsay exception

Answer 198

1. Availability irrelevant
2. Statement made while excited (usually immediately proximate to event)
3. Look for “!”
4. Similar to present sense impression, but Excited

Question 199

Discuss the “then existing mental/emotional/physical state of mind” hearsay exception

Answer 199

1. Availability irrelevant
2. Statements of intent, emotion, or physical state

Question 200

Discuss the “business records” hearsay exception

Answer 200

1. Availability irrelevant
2. Record made in the ordinary course of business (ALL THE TIME)

Question 201

Discuss the “statement for medical diagnosis or treatment” hearsay exception

Answer 201

1. Availability irrelevant
2. Statement related to past or present symptoms
3. About the treatment or diagnosis

Question 202

Discuss the “recorded recollection” hearsay exception

Answer 202

1. Availability irrelevant
2. Witness on stand cannot remember
3. Document made/adopted by the witness AT THE TIME IT WAS FRESH
4. CAN be read into evidence (or admitted if opposing party requests it as exhibit)

Question 203

Discuss the “public records” hearsay exception

Answer 203

1. Availability irrelevant
2. Record or statement of a public office/agency
3. Observations by someone with a duty to report

Question 204

Discuss the “absence of business/public records” exception

Answer 204

1. Availability irrelevant
2. Look for facts to indicate there was NO record (when records would normally be recorded)

Question 205

Discuss the “learned treatise” hearsay exception

Answer 205

1. Availability irrelevant
2. admissible when an expert witness is relying on the treatise

Question 206

Discuss the “ancient document” hearsay exception

Answer 206

1. Availability irrelevant
2. Authentication date: document must be more than 20 years old
3. FRE hearsay exception date: document must have been prepared before 1998

Question 207

Discuss the “catch-all” hearsay exception

Answer 207

1. Availability irrelevant
2. Material
3. Trustworthy
4. In the interest of justice

Question 208

Discuss the “dying declaration” hearsay exception

Answer 208

1. MUST BE UNAVAILABLE!
2. belief of impending death WHEN STATEMENT MADE
3. about cause of death
4. Homicide or civil cases ONLY

Question 209

Discuss the “statement against interest” hearsay exception

Answer 209

1. MUST BE UNAVAILABLE
2. Makes declarant look liable/guilty
3. Generally made by a non-party (if by a party, that would be an “admission” which is NON-HEARSAY)
   If a Party was actually unavailable, then it could fall under this exception instead of “admission”

Question 210

Discuss the “former testimoney” hearsay exception

Answer 210

1. MUST BE UNAVAILABLE
2. opponent was a party to the former case
3. Former case about the same subject
4. Made under oath
5. There was opportunity for cross-examination

Question 211

What is “non-hearsay”, the 4 types, and is it admissible?

Answer 211

1. Non-hearsay is basically “hearsay” but isn’t “just because”…
2. Admissible as SUBSTANTIVE evidence

Types are:
1. Admissions
2. Prior consistent statements
3. Prior SWORN inconsistent statements
4. Prior Identifications

Question 212

Discuss the non-hearsay “admissions”

Answer 212

1. Statements made by a party (basically, statement against interest, but by the actual party)
2. Admissible as NON-HEARSAY

Types:
1. Vicarious admissions (made by employees of D, agents of D, etc.)
2. Adoptive admissions (no response to accusation to which a normal person would object)

Question 213

Discuss the non-hearsay “prior consistent statement”

Answer 213

1. Prior statement by declarant
2. The same content as current testimony
3. to REFUTE a charge of fabrication or motive (can’t just randomly introduce it)

Question 214

Discuss the non-hearsay “prior SWORN inconsistent statement”

Answer 214

1. Prior statement made by declarant
2. MADE UNDER OATH
3. Inconsistent with current testimony

Question 215

Discuss the hon-hearsay “prior identification”

Answer 215

1. Declarant testifying about an earlier identification

Question 216

Discuss the “right to confront witnesses” as it relates to hearsay/out-of-court statements

Answer 216

1. The right to confront a witness concerning an out-of-court statement depends on if statement is “testimonial”
2. Non-testimonial - ADMISSIBLE (statements made to police, 911, during emergency)
3. Testimonial - NOT ADMISSIBLE (statements NOT made during an emergency)

Question 217

Is physical/demonstrative evidence admissible?

Answer 217

YES - for example, you can have someone walk to show a limp, show a scar, etc.

Question 218

What is “double hearsay”?

Answer 218

1. Two different statements (one statement reporting another statement)
2. NOT ADMISSIBLE!

EXCEPTION: (very rare) - unless BOTH statements had independent exceptions or were non-hearsay

Question 219

Do the normal federal rules of evidence apply to probation revocation proceedings?

Answer 219

NO - stuff like hearsay can come in

Question 220

When must a timely objection to a jury instruction be made?

Answer 220

Before the jury enter deliberations

Question 221

Who has final control over the order of examination of witnesses in a trial?

Answer 221

The trial judge has broad discretion to exercise control over the order of examination

Question 222

What is “impeachment by contradiction”?

Answer 222

If D opens the door to character by stating something like “I would never do drugs”, opposing party can introduce specific acts/prior bad acts to contradict that assertion

Question 223

What is “trespass to chattel”? (TORT)

Answer 223

1. INTENT
2. Interference with use (but returned/recovered)
3. Remedy = actual damages caused to chattel (minor damage… is object totally damages, it becomes conversion)

Question 224

What is “Conversion”? (TORT)

Answer 224

1. Intent (doesn’t have to be intent to steal, just intent to take it for any reason, even mistake)
2. Substantial interference with use
3. Remedy = value of property AT TIME OF CONVERSION

Question 225

What is “trespass to land”? (TORT)

Answer 225

1. Intent (to enter land, even by mistake as long as intentional)
2. Enter the land of another

Question 226

What is “intentional infliction of emotional distress”? (TORT)

Answer 226

1. Intent OR recklessness/malice
2. Extreme & outrageous conduct
3. Severe emotional distress (emotional distress alone is enough)

BYSTANDER THEORY: Bystander can only recover if:
1. Close family member (if not, bystander must suffer PHYSICAL harm from distress)
2. Defendant had knowledge
3. Severe emotional distress

Question 227

What is “False Imprisonment”? (TORT)

Answer 227

1. Intent
2. Victim in confined, bounded area
3. Victim aware of confinement

Question 228

What is the “Shopkeepers Privilege”? (TORT)

Answer 228

Shopkeeper can detain someone suspected of shoplifting so long as:
1. Reasonable belief/suspicion
2. Reasonable method of detention
3. Reasonable period of time

Question 229

What is “transferred intent”?

Answer 229

1. If I want to hit you and commit a battery, but I miss and hit someone else instead on accident, I am still guilty of battery against that other party
2. Defendant intends to commit a tort/crime, but commits it against a different person… still liable

Question 230

Name the 6 defenses to intentional torts

Answer 230

1. Consent (implied or express - cannot exceed scope of consent)
2. Self-defense (reasonable belief of attack, used reasonable/proportional force in response)
3. Defense of others (reasonable belief 3rd party going to be attacked, used reasonable/proportional force)
4. Defense of property (reasonable force, reasonable belief to stop invasion of land, NO DEADLY FORCE!)
5. Private Necessity (defense to trespass/have privilege, liable for damages to property)
6. Public Necessity (defense to trespass, preventing harm to public, not liable for any damages)

Question 231

What is the general duty of care in Negligence?

Answer 231

You have a duty to Foreseeable plaintiffs (people within the “zone of danger”)

The duty of the average person (standard of care) is to act as a reasonably prudent person.

Question 232

What is the duty of care for Landowners in Negligence?

Answer 232

1. Unknown trespasser: NO DUTY OF CARE (exception - no man-made death traps)
2. Known trespasser: DUTY TO WARN OF KNOWN DANGERS
3. Licensee (social guest/personal): DUTY TO WARN OF KNOWN DANGERS
4. INVITEE (business): DUTY TO WARN, INSPECT, MAKE SAFE

Question 233

What is the duty of care for business owners in negligence?

Answer 233

They have a duty to:
1. Invitees: Duty to warn, inspect, make safe
2. To people who may be in the zone of danger created by their business (baseball stadium)
3. Duty to act as other owners of similar businesses would

Question 234

Duty of care for parents to control children in negligence?

Answer 234

Parents have a duty IF they know/should have known child was likely to cause harm

Question 235

Is there a duty to aid/rescue?

Answer 235

1. NO general duty to rescue UNLESS:
2. You try to render aid, then you must exercise reasonable care
3. You caused the danger, now you have a duty to rescue
4. You have a duty to rescue if there is a special relationship (best reasonable efforts):
   Common Carriers/passengers
   Inkeepers/guests
   Teachers/students
   Employers/employees
   Parents/children

Question 236

Do children have a “duty of care” in negligence?

Answer 236

1. Under 5 - NO DUTY
2. 5-18 - Act reasonably as other children of same age, experience, and maturity would

Question 237

What is the duty of care in negligence for people with PHYSICAL handicaps?

Answer 237

1. Must act as a reasonable person with their physical handicap/limitations would (DOESN’T APPLY TO MENTAL HANDICAPS)

Question 238

What is the “professional duty of care” in negligence?

Answer 238

1. Duty to behave like similar professionals with similar education, training, customs (national standard)

Question 239

What constitutes a “breach” of the duty of care in Negligence?

Answer 239

Failure to comply with the duty of care

Question 240

Discuss the “causation” elements of negligence

Answer 240

1. Actual causation (“but for” test - almost always present)
2. Proximate causation (foreseeability - basically, a fairness test… is it “fair” to hold D liable here?)

INTERVENING CAUSE: Foreseeable but separate event that happens AFTER original tort - D PAYS ALL DAMAGES
SUPERSEDING CAUSE: Unforeseeable event, CUTS OFF LIABILITY to original D, (acts of god, intentional torts, criminal acts)

Question 241

Is physical or mental harm required for the “harm”/damages element of Negligence?

Answer 241

Physical injury is required

Question 242

Discuss Negligence PER SE (THIS IS NOT THE SAME AS NEGLIGENCE)

Answer 242

1. Violation of ordinance/statute
2. Injured party is of protected class (people the statute is designed to protect)
3. Injur is OF THE TYPE statute was trying to prevent

Question 243

Discuss Res Ipsa Loquitur (the fact speaks for itself)

Answer 243

Creates an inference/presumption of negligence IF:
1. Accident would not normally occur unless there was negligence
2. Defendant had exclusive control

On exam - questions dealing with Motions, directed verdict, etc. almost always are Res Ipsa

Question 244

General exam tips for Negligence analysis

Answer 244

1. If question is about DAMAGES = NEGLIGENCE
2. If question is about violation of law/statute = NEGLIGENCE PER SE
3. If question is about motions/inference = RES IPSA LOQUITUR

Question 245

What is the “attractive nuisance” tort?

Answer 245

ARTIFICIAL condition on land causing children to trespass… owner liable IF:
1. Owner of land knows (or should know) that children are likely to trespass
2. Unreasonable risk of harm
3. The children don’t/can’t appreciate the risk
4. Cost of remedy is less than the danger caused
5. Owner fails to make it safe

Question 246

What are the 4 “defenses”/liability schemes for Negligence?

Answer 246

1. Pure comparative negligence (P’s damages reduced by % of fault)
2. Modified/Modern comparative negligence (P cannot recover if more than 50% at fault)
3. Contributory negligence (if P has ANY fault - recovery is barred)
   EXCEPTION: Last clear chance rule - if D had last chance to avoid accident and didn’t, P can recover
4. Assumption of risk (Must have knowledge, and must appreciate danger)

Question 247

How does joint and several liability work in torts?

Answer 247

1. 2 or more people cause single accident (but % of fault unknown) - P can shift burden to D’s to prove they aren’t liable…
2. ALL defendants are jointly and severally liable for damages to P
   If P recovers from one D, that D can sue other D’s via contribution lawsuit

Question 248

How does vicarious liability work in torts?

Answer 248

1. Employer is liable for negligent employees (while employed, and within scope of employment)
2. Delivery driver hypo: short detour, still liable (quick snack stop) - long “frolic”, not liable

INDEPENDENT CONTRACTORS:
If you hire an independent contractor, you won’t be liable for their negligence UNLESS:
1. Abnormally dangerous activity
2. Non-delegable duty (work that involves safety/benefit of public - basically work in public spaces)
3. You instructed the contractor to act negligently

Question 249

What is “contribution” in torts?

Answer 249

When multiple D’s are negligent (they themselves all did something wrong), but unsure as to fault %… all are jointly and severally liable… if one D is forced to pay, then they can sue other D’s for “contribution” of a % of the damages.

Question 250

What is “indemnification” in torts?

Answer 250

Generally, goes with vicarious liability… employer is forced to pay for employee negligence… employer will sue employee for “indemnification” and force the employee to cover the cost the company incurred in damages

Question 251

Discuss the 2 main types of strict liability

Answer 251

1. Possession of wild animals (fear of a wild animal alone is enough if that causes injury)
   Possession of wild animals requires (1) non-domesticated animals, (2) injury that would normally occur
   Domestic animals with “dangerous propensities” (aka, known danger/notice) - also strictly liable
2. Abnormally dangerous activity (excavation, dynamite, toxic chemicals)

DEFENSE: Assumption of risk: knew and appreciated risk (warning sign you read and ignored)

Question 252

Name the 3 types of Products Liability

Answer 252

1. Negligence Theory (negligence in the chain caused product to break/not work)
2. Breach of Warranty (Must be a promise of product performance)
   Merchantability: product acted as it should
   Fitness for particular purpose: product only works for particular purpose
3. STRICT PRODUCTS LIABILITY (also called “strict liability in tort” on MBE)
   
   1. defective product (manufacture or design, doesn’t matter) - also could be an inadequate warning
   2. Sold by commercial seller
   3. Foreseeable user
   4. used in manner intended
   5. Producted unchanged/unaltered
      DEFENSES: Assumption of risk, Misuse

Question 253

What are the elements of defamation?

Answer 253

1. False statement
2. about the plaintiff
3. hurts reputation
4. publication (must be “heard” and “understood” by a 3rd party)
5. Damages

Question 254

What are the 3 sub-types of defamation?

Answer 254

1. Libel (written or printed) NO MONEY DAMAGES need to have been suffered - reputation harm alone is enough
2. Slander (spoken - MUST PROVE SPECIAL/PECUNIARY (money) damages)
3. Slander PER SE (harm/damages presumed - no proof necessary)
   Say something about profession/business
   Chastity of a woman
   Crime of moral turpitude (accuse someone of a felony)
   Accuse someone of a STD (loathsome disease)

Question 255

What is the defamation standard of proof between Private and Public people.

Answer 255

1. Private (assume everyone private unless told otherwise) - standard of proof is NEGLIGENCE
2. Public (standard of proof - ACTUAL MALICE/Reckless disregard for truth) - public figures put themselves out there for the benefits, so they have a higher burden

Question 256

What are the 3 defenses to defamation?

Answer 256

1. Truth (absolute defense to all defamation)
2. Absolute privilege (statement made in the course of official proceedings - like on senate floor)
3. Qualified Privilege:
   
   1. statement necessary to protect defendant/publics interest
   2. Honest and reasonable belief (example: letter of recommendation with honest and negative information)

Question 257

Discussion “invasion of privacy” and the 4 types

Answer 257

1. False light (portray someone in a false light - doesn’t have to be bad, just false)
2. Appropriation (unauthorized use of likeness or image for profit)
3. Public disclosure of private matter (can’t be something you willingly disclosed, NOT newsworthy)
4. Intrusion upon seclusion (invasion of private space (breaking into someone’s bank records))

Question 258

Discuss the two types of Misrepresentation (fraud) in torts

Answer 258

INTENTIONAL MISREPRESENTATION:
1. Misrepresentation of material fact
2. Scienter (intent - knew or should have known)
3. Intent to induce reliance
4. Reliance
5. Damages

NEGLIGENT MISREPRESENTATION:
1. Negligence
2. Special relationship (fiduciary)
3. Detrimental reliance
4. Damages

Question 259

Discuss the elements of “Tortious interference with a contractual relationship”

Answer 259

1. Contract exists
2. Defendant has knowledge
3. Intentional interference
4. Damages

Question 260

Discuss the tort of “malicious prosecution”

Answer 260

1. Criminal proceeding
2. No probable cause
3. Improper purpose
4. Dismissed in favor of accused

Question 261

What is “original jurisdiction” in relation to SCOTUS?

Answer 261

1. Case can go directly to SCOTUS
2. Congress CANNOT enlarge or restrict - set by constitution

Question 262

What is “appellate jurisdiction” in relation to SCOTUS?

Answer 262

1. Case must be appealed up to SCOTUS
2. Congress MAY regulated scope

Question 263

Can congress control SCOTUS?

Answer 263

1. NO - congress CANNOT tell SCOTUS what to do
2. Congress CAN establish lower courts and their jurisdiction

Question 264

What is “mootness”?

Answer 264

1. The issue has already been resolved (won’t be heard)
   EXCEPTION: If bad actor could resume bad behavior, then it isn’t “moot”

Question 265

What is “ripeness”?

Answer 265

1. Case is not ready to be brought before the court (law is being considered, but not passed yet)

Question 266

What is “standing”?

Answer 266

1. Plaintiff must have a personal injury at stake to bring a claim (groups can sue on behalf of members who wouldn’t have standing individually)

Question 267

What is “no case or controversy”?

Answer 267

Basically, case is moot/not ripe/no standing… so nothing to decide

Question 268

What is the “independent and adequate state grounds” doctrine?

Answer 268

1. If state court case is decided correctly based on STATE law (even if federal law as relevant), then it won’t go to SCOTUS
2. If case is decided incorrectly, or if federal question remains/there is conflict with federal law after decision, then WILL go to SCOTUS

Question 269

What is a “political question” (justiciability)?

Answer 269

Federal courts will not hear cases regarding subject matter of legislative or executive power (left to voters)

Question 270

Discuss the 11th Amendment

Answer 270

1. Citizens of a state cannot sue their own or another state/feds (as an entity) - CAN SUE MUNICIPALITIES!
2. EXCEPTIONS: Unless the state consents, you are suing a specific official

Question 271

Discuss the Presidential veto power

Answer 271

1. President can veto bills from congress (then congress would need 2/3 vote to override)
2. NO LINE-ITEM VETO: Must veto entire thing, can’t single out parts

Question 272

Discuss the Presidential appointment power

Answer 272

1. President has power to appoint ambassadors, federal judges, heads of agencies (superior officers)
2. Congress can appoint “inferior officers”

Question 273

Discuss the Presidential Pardon Power

Answer 273

1. President has absolute power to pardon (wipes clean) - even say 20 year window
2. ONLY applies to federal crimes

Question 274

Discuss the Presidential powers of “commander in chief”

Answer 274

1. Can command troops (for instance - move into this country and do X)
2. CANNOT “declare war”

Question 275

Discuss the Presidential Treaty Power

Answer 275

1. The President has the power to enter into treaties
2. If a treaty conflicts with federal law, last in time prevails
3. If treaty conflicts with Constitution, Constitution prevails
4. If treaty conflicts with State law, Treaty prevails

Question 276

Discuss Presidential “executive order” vs “executive agreement”

Answer 276

1. Executive Order (domestic - deals with admin power) - cannot conflict or supersede congress. Orders are OK in unregulated space… but if congress has something on point, executive order cannot conflict
2. Executive Agreement (agreement with foreign power/foreign state) - CANNOT conflict/supersede congress

Question 277

Discuss Congress’ “tax power”

Answer 277

1. Can tax if it “raises revenue for the general welfare”

Question 278

Discuss Congress’ “spending power”

Answer 278

1. Can spend if it is “for the general welfare”

Question 279

Discuss the commerce clause

Answer 279

1. Congress has broad (plenary=broad) power to regulate ANYTHING touching “commerce”
2. Dorman Commerce Clause: A state law regulating business CANNOT discriminate against out of state business (but if a state is acting as market participant, the state themselves can favor in-state interests)

Question 280

Discuss Congress’ War Power

Answer 280

1. Only congress can declare war”

Question 281

Discuss Congress’ “foreign affairs” power

Answer 281

Congress has primary authority

Question 282

Discuss Congress’ power of Aliens (noncitizens)

Answer 282

Congress has power of passing laws/doing things for/against aliens

Question 283

Discuss Congress’ power of printing money

Answer 283

Congress has authority to create/print money

Question 284

Who can regulate federal property?

Answer 284

Congress can regulate federal property (including washington DC)

Question 285

Can Congress delegate its power?

Answer 285

1. Yes, congress CAN delegate to president/executive branch
2. MUST include guidelines and limitations

Question 286

What is the “necessary and proper clause”?

Answer 286

Congress can do anything that is necessary and proper to execute its enumerated powers - MUST be linked to an enumerated congressional power - if not, WRONG ANSWER!

Question 287

Discuss the “supremacy clause”

Answer 287

1. In conflict between state and federal law, federal law always wins
2. Federal law establishes the baseline of regulation - but states can exceed it (states have 10th amendment police power, so they can go above/beyond federal baseline)

Question 288

Discuss the 10th Amendment

Answer 288

1. States have general police power
2. This allows states to pass laws for the “general welfare” (health, safety, whatever)
3. Any powers not given to congress are reserved for the states

Question 289

Is there a federal police power?

Answer 289

1. NO - there is no federal power to pass laws for the general welfare (can tax/spend for general welfare)

Question 290

Discuss the “anti-commandeering doctrine”

Answer 290

1. Congress cannot compel a state to do something (can incentivize so long as not coercive)

Question 291

Discuss the “Dormant Commerce Clause”

Answer 291

1. State law regulating business CANNOT discriminate against out of state business
2. Market Participant Exception: If state is active in the market - then they may discriminate themselves (choosing to only hire in-state contractors or whatever), but cannot pass law to discriminate against OOS

Standard of Review
2. If discriminatory on its face - STRICT SCRUTINY
3. If discriminatory effect - Intermediate scrutiny (important government interest/burden on commerce shouldn’t be excessive)

Question 292

What is “full faith and credit”?

Answer 292

1. Judgments from one state must be given full faith and credit (honored) in another state

Question 293

What is “federal immunity”?

Answer 293

1. States cannot sue the federal government as an entity
2. States cannot tax the federal government
3. States CAN tax federal employees working in a state
4. Individuals cannot sue the federal government UNLESS government consents

Question 294

What is “state immunity”?

Answer 294

1. Federal government AND other states may sue a state
2. Federal government cannot tax a state government IF the tax relates to a state governmental activity
   Fed government CAN tax an independent business that works on state property
3. State can tax individuals working on federal property/for federal government in the state

Question 295

Discuss “equal protection” and the 3 levels of scrutiny

Answer 295

1. Government is treating people differently (singling out a group/class)

Standards of Review:
1. Strict Scrutiny (race, alienage, national origin)
GOVERNMENT HAS BURDEN
MUST BE NECESSARY TO ACHIEVE A COMPELLING GOVERNMENT INTEREST
2. Intermediate Scrutiny (Gender, illegitimacy)
GOVERNMENT HAS BURDEN
Must be SUBSTANTIALLY related to an IMPORTANT interest
3. Rational Basis (applies to everyone else)
PLAINTIFF HAS BURDEN
Must be Rationally Related to a LEGITIMATE government interest

Question 296

Discuss the “strict scrutiny” standard of review

Answer 296

1. Applies to - FUNDAMENTAL RIGHTS, Race, Alienage, National Origin
2. GOVERNMENT HAS BURDEN
3. MUST BE NECESSARY TO ACHIEVE A COMPELLING GOVERNMENT INTEREST

Question 297

Discuss the “intermediate scrutiny” standard of review

Answer 297

1. Gender, illegitimacy (content-neutral speech regulation)
2. GOVERNMENT HAS BURDEN
3. Must be SUBSTANTIALLY related to an IMPORTANT interest
   SPEECH VARIATION - must further significant government interest and leave open alternative means of comms

Question 298

Discuss the “rational basis” standard of review

Answer 298

1. EVERYONE WHO ISNT A PROTECTED CLASS OR FUNDAMENTAL RIGHT
2. PLAINTIFF HAS BURDEN
3. Rationally related to LEGITIMATE government interest

Question 299

What is “substantive due process”?

Answer 299

1. LIBERTY RIGHTS - Government is regulating a right of ALL PEOPLE

Fundamental rights (strict scrutiny)
1. Right to vote
2. Free speech (includes religion)
3. Interstate travel (between states) - INTRASTATE IS NOT A FUNDAMENTAL RIGHT
4. Privacy rights (contraception, marriage, procreation, private education, raise a family)

Special scrutiny (2nd amendment - history and tradition from Bruen)

NON-fundamental right (rational basis)

Question 300

What is “procedural due process”?

Answer 300

1. PROPERTY RIGHTS
2. IF Government attempts to take a “property right” you are entitled to NOTICE & HEARING
3. These rights are: Governmental jobs, professional licenses, public benefits
4. Individual plaintiff must have “earned” the right/benefit (it must have vested)

Question 301

What is the difference between “substantive” and “procedural” do process?

Answer 301

1. Substantive due process is when government is regulating ALL PEOPLE’s liberty rights
2. Procedural due process is when government is regulating individuals “property” rights

Question 302

Discuss equal protection and due process in 5th vs 14th amendments

Answer 302

1. If it is FEDERAL law passed by congress - 5th amendment
2. If it is a STATE passing the law - 14th amendment

Question 303

Discuss the 13th vs the 15th amendment

Answer 303

1. 13th amendment: Bans slavery - PRIVATE individuals cannot racially discriminate (no state action required)
2. 15th amendment: prohibits racial discrimination linked to VOTING (key word - race linked to voting)

Question 304

Discuss the “takings clause”

Answer 304

1. Government taking of private property (actual taking, or regulatory taking where government denies you benefit of the land - MUST ALMOST COMPLETELY DESTROY VALUE)
2. For public use (any overall public benefit is enough - even taking and letting another private party develop)
3. With just compensation (fair market value for property at time of taking)

Question 305

Discuss the “establishment clause”

Answer 305

1. Government cannot pass a law that formally establishes a religion
2. Government laws must be religiously neutral
3. Look at intent… should be neutral and respect historical tradition of separation of church and state

Question 306

Discuss the “free exercise clause”

Answer 306

1. Government must remain neutral on practice of religion (cannot favor/disfavor)
2. Government laws must be religiously neutral (a restriction that is neutral and happens to restrict a particular belief is OK unless there is evidence of “intent” to restrict that particular belief despite appearing neutral)

Question 307

Discuss content-based speech regulation

Answer 307

1. Government stops the message because of the message
2. Triggers strict scrutiny - GOVERNMENT BURDEN
3. Must be necessary to achieve a compelling government interest

Question 308

Discuss content-neutral speech regulation

Answer 308

1. Regulation on time, place, manner of speech (where/when/how)
2. Intermediate Scrutiny variation - GOVERNMENT BURDEN
3. Furthers a significant government interest and leaves open alternative means of communication

Question 309

Discuss Public forum vs Non-public forum speech regulations

Answer 309

1. Public Forum (street/parks) - must further significant gov interest and leave open alternative means of comms
2. Non-public forum - Must be “reasonably related to a legitimate government interest”

Question 310

Name the 5 types of unprotected speech

Answer 310

1. Obscenity
2. Clear & Present Danger
3. Fighting Words
4. Commercial Speech
5. False and Misleading advertising

Question 311

Name elements of “obscenity”? (unprotected speech)

Answer 311

A reasonable person would find the material:
1. Appealed to a prurient sexual interested (judged by local community standard)
2. Depicts sex in a patently offensive manner
3. Lacks any serious literary, artistic, political, or scientific value

Question 312

Name the elements of “Clear & Present Danger” (unprotected speech)

Answer 312

1. Speech incites imminent violent action (by a group of people)
2. Likely to produce violence (by the group)

Question 313

Name the elements of “fighting words” (unprotected speech)

Answer 313

1. Harsh language likely to incite an average person to commit violence
2. focused on an individual (group is clear and present danger)

Question 314

Name the elements of “commercial speech” (unprotected speech)

Answer 314

1. Business related speech
2. Standard of Review:
   Reasonable fit to a SUBSTANTIAL interest (must be narrowly tailored)

Question 315

Name the elements of “false and misleading advertising” (unprotected speech)

Answer 315

Speech that provides false/misleading information - NOT PROTECTED

Question 316

What is “prior restraint”?

Answer 316

1. Stops speech before it is made/published
2. injunctions, gag orders, etc.
3. Disfavored, but can be legal (prevent leak of D-Day plans for instance)

Question 317

Is unfettered discretion of government officials with speech OK?

Answer 317

NO - government officials cannot pick and choose one form of speech over another

Question 318

What are some examples of overbroad speech regulation?

Answer 318

1. Words like “any” and “all” in a statute indicate speech regulation is too vague
2. Statutes cannot be too broad or vague

Question 319

What is a “bill of attainer”?

Answer 319

1. When government (congress, other legislative body) targets an individual or group of people for punishment by NAME (and passes a bill to accomplish this)
2. Government cannot target individuals/groups like this for criminal/civil penalties via a statute targetted at them.

Question 320

What is “ex post facto”?

Answer 320

1. A law that retroactively makes past conduct illegal
2. UNCONSTITUIONAL

Question 321

What is the “contracts clause”?

Answer 321

1. State cannot EXPRESSLY impair your ability to enter a contract
2. States also cannot void/dishonor contracts by passing updated statute (feds can though)

Question 322

Is “state action” necessary to violate Constitution generally?

Answer 322

Yes - there MUST be state/government action to violate the constitution (also, agents acting under color of government)

EXCEPTION: 13th Amendment prevents private individuals from racially discriminating

Question 323

Discuss what an “offer” is in contract law

Answer 323

1. Outward manifestation of intent to enter into a contract

Must contain:
1. Intent
2. Specific Terms (price, quantity, description) - in UCC, quantity is only absolutely required term

Question 324

Are “advertisements” offers?

Answer 324

1. Generally no - advertisements are invitations to an offer, or invitations to bargain
2. If advertisement has VERY specific terms, then it could be an offer

Question 325

What are the 5 ways to terminate an offer?

Answer 325

1. Death
2. Lapse of time
3. Rejection
4. Counteroffer (watch out for “inquiry” instead of counteroffer)
5. Revocation
   Direct revocation: Express retraction of an offer communicated to the buyer
   Indirect revocation: buyer learns that seller made a deal with someone else

Question 326

ALL offers are revokable except when:

Answer 326

1. Option contract: promise to keep offer open for set amount of time (requires consideration unless UCC merchant firm offer)
2. Merchant firm offer:
   
   1. Sale of goods
   2. Between merchants
   3. SIGNED writing by person to be bound
   4. Either for time stated, or 3 months if no time stated (becomes revokable after 3 months)
3. Unilteral contract: A promise for an act
   Once a party starts performance, offer becomes irrevocable (but that party can quit performance)

Question 327

What are the valid methods of accepting an offer?

Answer 327

1. There MUST be a meeting of the minds
2. If not specified can accept via any reasonable means (verbal, written, whatever)
3. Silence CAN be acceptance IF it is customary (implied acceptance)
4. CAN accept via performance
5. CAN accept via mail (mailbox rule) Acceptance is effective WHEN SENT
   EXCEPTION: If you send rejection first, then acceptance, first to arrive will control

Question 328

Discuss Mirror Image Rule (Common Law VS UCC)

Answer 328

Common Law
1. If I specify that you accept in a specific way, you must accept in that way
2. Terms of the offer and acceptance must be identical - if not, is a rejection and a counteroffer with new terms

UCC
1. So long as no material terms have changed, new terms that are added into acceptance are presumed to be part of the contract UNLESS other party timely objects (if they object, offer is DEAD)
2. Material Terms: Warranties, changes in price or product of the offer
3. If the offer limits how acceptance can be made, then it must be made in that manner

Question 329

What is “consideration”?

Answer 329

The bargained for exchange of something of value
1. Must be at least “something” (even a peppercorn is OK - courts won’t second guess nominal consideration)
2. Abstaning from doing something is “consideration”
3. Promises to pay a debt after SOL is consideration
4. Promise for a promise is consideration
5. Promises to pay a debt discharged in bankruptcy is consideration

Question 330

What is “promissory estoppel” in contract law?

Answer 330

1. Detrimental reliance because you promised me something, and I did something
2. Look for “reliance” in the hypo

Question 331

What are the 3 main types of INVALID consideration?

Answer 331

1. Illusory Promise (party making promise retains control - “i will sell it to you when I feel like it”)
   Modern trend is to construe towards validity if possible
2. Gift (the promise to give a gift is invalid consideration) - but watch for reliance on gift (promissory estoppel)
   Once a gift is given, it cannot be taken back and IS valid consideration
3. Past consideration (moral consideration)
   NOT CONSIDERATION - already happened

Question 332

What is an “accord and satisfaction”?

Answer 332

Settlement of a debt for less than owed
1. The debt amount MUST BE DISPUTED! (if undisputed - partial payment does NOT settle debt)
2. If we disagree about an amount and we negotiate a settlement, compromise is OK
3. If you accept my lesser payment for the disputed amount, you cannot later then sue for the remainder

Question 333

Discuss everything about the Statute of Frauds…

Answer 333

Certain contracts MUST BE IN WRITING (MYLGS)
1. Marriage
2. Contracts that cannot be performed in a year (exception if you have already fully performed, then valid without writing)
3. Land sales/leases (exception for part performance - if you have paid something AND made either improvements or have possession)
4. Guarantor (surety) - If you agree to pay the debt of another, must be in writing UNLESS it is done to benefit yourself… if you do it to partially or fully benefit yourself, then ORAL ONLY IS ENOUGH
5. Sales of goods of $500 or more
EXCEPTION: part performance - partial delivery/payment can show presence of contract w/o writing
EXCEPTION: Merchant Confirmation - If merchant sends another merchant a SIGNED CONFIRMATION of receipt of order, for X quantity, then the contract will be valid unless other merchant objects within 10 days

SOF writing must contain:
1. Parties
2. Subject matter (MYLEGS)
3. Material Terms
4. Signed by party to be charged (official letterhead counts as signature)

Question 334

Discuss everything about Parol Evidence for contracts…

Answer 334

Parol Evidence is when you are attempting to bring in additional evidence of terms NOT contained in the K
1. MUST be information discussed PRIOR TO or AT THE TIME the parties entered the contract

Integration:
1. Final/Complete integration (Parol evidence s NOT admissible - K will have a merger clause or parties agree that this is final agreement - NOT FINAL UNLESS HYPO SAYS SO)
EXCEPTION: Parol Evidence CAN come in if it is to clear up ambiguity (but cannot contradict)
2. Partial Integration (assume all K’s are this unless told otherwise)
Evidence that explains or supplements original K is admissible
Evidence that contradicts or alters materialy term is NOT ADMISSIBLE

EXCEPTIONS where Parol E can come in for both final and partially integrated K’s…
1. Fraud
2. Mistake
3. Duress
4. Condition precedent
5. Course of dealing
6. Trade custom

Question 335

Discuss Risk of Loss (Non-carrier cases VS common carriers)

Answer 335

Non-Carrier Case
1. Seller is a merchant (Risck on seller until buyer takes possession)
2. Seller is nonmerchant (risk on seller until goods are “tendered”/made available to buyer)

Common Carrier Case
1. Shipment contract (risk of loss shifts to buyer once goods given to carrier)
2. Destination Contract (risk of loss shifts to buyer when goods delivered to named destination)

FOB (Free on board)
(a) if it says FOB seller - this is a SHIPMENT CONTRACT (risk passed when delivered to carrier)
(b) if it says FOB any other place - DESTINATION CONTRACT (risk passed when delivered to named place)

Question 336

What is a “requirements” or “outputs” contract?

Answer 336

1. Requirements: I will sell you all the widgets you need (within reason) to meet your needs
2. Outputs: I will sell you everything I produce (you have a good faith effort to use/buy from me)

look for good faith here - as long as in good faith, usually OK if don’t meet expectations

Question 337

Discuss what contract modification is (Common law VS UCC)

Answer 337

Changing a material term in the contract
1. Common law (new consideration needed) (unless something unforeseen happened - then fair and reasonable)
2. UCC (no consideration, only good faith needed)
3. Modification can be oral OR written (for UCC, clauses prohibiting oral modifications are valid)
4. Mutual modification (something unforeseen happened, both parties agree to modify in a way that is “fair and reasonable under the circumstances” - OK for both common law and UCC)

Question 338

Name the 3 types of contract conditions (temporal)

Answer 338

Look for words in hypo like “unless” or “if” or “only if”
1. Condition precedent (event happens PRIOR to performance of K)
2. Condition concurrent (event happens at time of performance of K)
3. Condition subsequent (event happens at time after performance of K)

Question 339

What are the 3 exceptions to contractual conditions?

Answer 339

1. Waiver of condition (if you don’t meet condition and I say “don’t worry about it”, condition is waived)
2. Bad faith (if one party doesn’t even try to perform condition, then they may be compelled to perform or be found in breach)
3. Avoiding forfeiture (if someone could suffer massive loss, then condition could be waived for equity)

Question 340

Is time of the essence in a contract?

Answer 340

1. Time is NOT of the essence unless stated
2. IF stated, it becomes a condition to K

Question 341

How are non-conforming goods handled under UCC?

Answer 341

Shipment of non-conforming goods is generally a breach
The buyer may:
1. Accept
2. Reject
3. May reject/accept in part (if partial, will pay amount of goods accepted - if lesser goods accepted, adjust price)
4. Must be done in a reasonable amount of time

ACCOMMODATION EXCEPTION:
1. If seller notifies buyer that non-conforming goods were shipped as an accommodation because conforming wasn’t avaailable, then buyer can accept/reject, but NOT considered a breach

Question 342

Talk about the “seller’s right to cure” under UCC

Answer 342

Seller can cure IF:
1. Seller had reasonable grounds to believe the goods were acceptable (if not acceptable, and notice from seller that they will cure, reasonable time to cure must be allowed)
2. Cure accomplished by Notice from seller + new tender within time for performance (or reasonable time)

IF seller delivers non-conforming goods PRIOR to due date, and provides notice that they will fix, they must be given until deadline to cure

Question 343

Talk about the UCC “installment contract”

Answer 343

1. Delivering goods in several shipments over time
2. If single shipment is non-confirming, generally not a total breach IF IT CAN BE FIXED (buyer must give seller chance to cure that installment)

EXCEPTION: if the nonconformance of that single shipment would materially impair the value of the entire K, then can be treated as total breach

Question 344

What is the “impracticability” defense in contract law?

Answer 344

1. Unforeseeable event makes performance too difficult/expensive
2. Mere fluctuations in price of things are foreseeable, so NOT an excuse
3. Must be massive/acts of god (act of war prevents shipment or makes it 200x more expensive)

Question 345

What is the “impossibility” defense in contract law?

Answer 345

1. ONLY available if NOBODY could perform (example - unique good destroyed)
2. Impossibility is NOT a defense if issue was foreseeable and parties prepared a contingency
3. EXCEPTION: Temporary impossibility (not an excuse for not performing, but could excuse delay/modification)

Question 346

What is the “frustration of purpose” defense in contract law?

Answer 346

1. The core reason for K is no longer present (example - I sign up for flying lessons but then go blind)

Question 347

What is “anticipatory Repudiation” in contracts?

Answer 347

1. One party UNEQUIVOCALLY refuses to perform
2. must occur BEFORE contract performance due
3. If one party does this, other party can:
   (a) Sue immediately for breach
   (b) Find someone else to do the work
   (c) May wait to see if party will performance, but don’t have to accept that performance if offered after repudiation

Retraction: Party that repudiates can retract unless (other party sued, other party accepted repudiation, or other party relied on repudiation)

Reasonable Assurances: Mere uncertainty voiced by 1 party is NOT a repudiation of K, but if this happens (or if there is other uncertainty), the other party may ask for reasonable assurances - refusal to provide reasonable assurances would be a repudiaiton of K. Can only be demanded for valid concern, and must give 30 days for response

Question 348

What are “expectation damages”?

Answer 348

1. put plaintiff in position as if K had been performed (DEFAULT RULE)
2. Must be foreseeable with reasonable certainty
3. If there were additional costs added due to breach, add those to recovery amount

Question 349

What are “reliance damages”?

Answer 349

1. Put plaintiff in position he would have been in PRIOR to K. (P incurred costs in reliance - needs reimbursement
2. NO expectation damages - just reimbursement of incurred costs
3. Used when expectations not available (usually because too speculative)

Question 350

What are “restitution damages”?

Answer 350

1. Get money back for a benefit that has ALREADY been conveyed
2. Contract PARTIALLY performed
3. Measured in market value for services
4. NON-breaching party may CHOOSE between expectation and restitution damages

Question 351

What are “consequential damages” vs “incidental damages”?

Answer 351

1. Consequential: The foreseeable costs incurred by the non-breaching party due to the breach
2. Incidental: NON-foreseeable damages I incurred because of your breach

Question 352

What are “liquidated damages”?

Answer 352

1. At time of contract formation, we agree on X damages if there is a breach because it would be too difficult to calculate accurate damages otherwise.
2. MUST be reasonable (cannot act as “penalty” - generally 10% or less of K price is “reasonable”)

Question 353

What is “Quantum Meruit” damages?

Answer 353

1. Restitution damages awarded to the BREACHING party for the services they already provided.
2. Basically, if D did a partial job and breached, we owe them restitution less the cost of mitigating the breach

Question 354

What is a “lost volume seller”?

Answer 354

1. Seller who can sell as many widgets as possible
2. In event of breach, remedy is LOST PROFITS

Question 355

What are the “equitable remedies” in contract law and when are they available? 3 of them…

Answer 355

ONLY available when “remedy at law” (money) is not adequate
1. Specific performance - unique items (land, 1-of-a-kind widget, etc.)
2. Injunction - to prevent “irreparable harm” (employment K’s, trade secrets, proprietary information)
3. Rescission - available for lack of “meeting of the minds (Mistake, misrepresentation, duress, lack of capacity)

Question 356

Discuss 3rd party beneficiaries in Contract law…

Answer 356

1. Two people must have a valid K, and a 3rd party will benefit from that K

TWO TYPES:
1. Incidental 3rd party (NEVER HAS RIGHTS UNDER K - just lucky to benefit from it)
2. Intended 3rd Party (MAY have rights under K IF the right has “vested”)
(1) Rights “vest” when 3rd party is informed of rights an accepts: or
(2) 3rd party learns of rights and relies on them
(3) if rights haven’t vested, original parties can rescind freely

3rd Party can sue EITHER of the original parties to the K - the 3rd party stands in shoes of original parties (has same rights and defenses)

Question 357

Talk about the differences between contract “assignment” and “delegation”

Answer 357

1. Two people have a valid K (one party then transfers that obligation to someone else - new party assumes rights and obligations). ASSIGNMENTS AND DELEGATIONS AND GENERALLY VALID
2. Assignments and delegations must have a “present intent to transfer” (can’t be in future)
3. Beneficiary must allow the performance of the delegated party
4. The beneficiary can sue either the assignor OR the assignee if things go bad (absent novation)
5. If assignment of money payment, must provide notice to original party before they are obligated to 3rd party

EXCEPTIONS: Not valid if they would materially alter risk of performance, or if for unique or special services

Anti-Assignment Clauses: Assignment still valid, BUT original party is liable for money damages for breach
EXCEPTION: if there is language stating assignments are “VOID” then CANNOT ASSIGN!

Anti-Delegation Clause: delegations in violation of anti-delegation clauses are NOT VALID!

Question 358

Talk about Subject Matter Jurisdiction (SMJ) - Diversity Jurisdiction

Answer 358

REMEMBER - YOU NEED BOTH SMJ AND PJ!

IMPROPER SMJ CAN NEVER BE WAIVED!

Diversity Jurisdiction
1. Claim must be for more than $75000 (if legal certainty it can’t, court should dismiss)
2. Adding Claims:
(a) P can add additional claims if ONE exceeds 75k
(b) Single P can aggregate their own claims together to reach more than 75k
(c) if multiple P’s, others can join if even a single P meets the 75k+ mark, but multiple P’s cannot aggregate
(d) Class Actions: so long as a single NAMED P of class meets 75k+, its OK
3. Must have complete diversity of citizenship (no P may be a citizen of same state as ANY D!) - where domiciled
(a) domicile/citizenship is determined at time of filing
(b) a U.S citizen vs a foreign national is “diverse”
(c) corporations are citizens of where incorporated and where primary place of business located
(d) Partnerships are citizens of every state where a partner is domiciled
(e) Class Action: for class action, only citizenship of named plaintiffs matters for diversity

Question 359

Talk about Subject Matter Jurisdiction (SMJ) - Federal Question

Answer 359

REMEMBER - YOU NEED BOTH SMJ AND PJ

IMPROPER SMJ CAN NEVER BE WAIVED

Federal Question
1. P’s claim must be based on federal law (statute, regulation, Constitution, etc.)
(a) other specific fed questions: Admiralty, Maritime, IP, Bankruptcy
2. Well Pleaded Complaint Rule: Federal issue MUST be obvious in initial pleading
(a) anticipating a federal law defense from the defendant is NOT sufficient for federal question

Question 360

Talk about Subject Matter Jurisdiction (SMJ) - Supplemental Jurisdiction

Answer 360

1. MAY add claims without SMJ IF they arise from “Common nucleus of operative facts”/same transaction
2. If original SMJ is based on DIVERSITY - new party CANNOT destroy complete diversity

General Rule (Court has discretion to grant/deny):
1. If D is trying to add claim/party - SMJ generally allowed
2. If P is trying to add claim/party, SMJ generally NOT allowed

Detailed Rules:
1. Generally allowed for:
(a) compulsory counterclaims
(b) Joinder in compulsory counterclaims
(c) Cross-claims
(d) Impleader of 3rd party D’s
2. Generally NOT allowed for:
(a) original P vs 3rd party D
(b) compulsory joinder
(c) Joinder of D’s
(d) Intervention

Question 361

Talk about Personal Jurisdiction…

Answer 361

This is the ability to bring an individual into court…
COURT HAS PJ IF D IS:
1. present/personally served in the state (presence in state for court appearance or due to fraud is not OK)
2. Domiciled in the state
3. Consents to suit in the state

IF D IS OUT OF STATE:
1. Long-arm statute: State must have a statute authorizing PJ to out-of-state persons
(a) If there is statute, D MUST HAVE MINIMUM CONTACTS TO BE FAIR TO SUBJECT THEM TO PJ - DUE PROCESS

Minimum Contacts Test:
1. Suit does not offend traditional notions of fair play and justice (is it fair?)
2. D could reasonably anticipate litigation (Minimum contact MUST BE RELATED TO THE LAWSUIT!)
3. For Businesses/Corporations:
(a) purposeful availment
(b) systematic and continuous activities

Question 362

What is the difference between “in rem” and “quasi in rem” jurisdiction? (PJ)

Answer 362

In Rem Jurisdiction:
1. Jurisdiction over an object/property (rather than a person)
Quasi in rem Jurisdiction:
1. Going after property to satisfy a judgment against an individual (couldn’t get PJ on D, so going after property)

Question 363

Where can the service of process occur and what must it contain?

Answer 363

MUST GIVE ADEQUATE NOTICE that you are being served

1. Only in the limits of the state where the district court sits; OR
2. ANYWHERE ALLOWED BY THE STATE LONG-ARM STATUTE!

EXCEPTION: 100-mile bulge
1. Out-of-state service allowed within 100 miles of court - ONLY for 3rd party D’s or indispensable parties

Question 364

What are the proper ways to serve process? 5

Answer 364

1. Personal service by NON-PARTY over 18 years old
2. At home with person of suitable age
3. First class mail (D must return acknowledgment or waiver - if no waiver, D responsible for service costs)
4. Service to authorized agent
5. Other methods approved by STATE LAW

Question 365

What are the out-of-state specific service of process methods? 3

Answer 365

1. Certified mail
2. Newspaper if no other reasonable way
3. RARE - serve public official who would then serve the D

Question 366

How do you serve a corporation?

Answer 366

1. Officer or designated agent
2. Anyone of “sufficiently high placement” in the company

Question 367

How does “removal” work?

Answer 367

Case is in state court and D commences an action to “remove” to federal court (automatically happens)
1. Only D’s can remove (but D cannot remove IF he is citizen of forum state)
2. If multiple D’s, ALL must join in removal
3. D must file notice to remove within 30 days of service of complaint
4. Removal of Diversity Case must be done within 1 year of commencement of case (regardless of when served)
5. If one claim is removable, then entire case can be removed
6. Removal is proper if the original case could have been brought in fed court

Question 368

How does “remand” work?

Answer 368

1. P can motion to remand back to state court due to “improper removal”
2. Must bring motion to remand within 30 days of filing of the ORIGINAL REMOVAL NOTICE!
3. D has the burden to show that removal was proper

Question 369

What is “Venue” and what is “proper venue”?

Answer 369

1. Venue is the proper federal district court for a case

PROPER VENUE:
1. Where any D resides (if all D’s reside in the same state)
2. Where substantial part of events took place (there could be multiple proper places of venue)
3. If 1 and 2 don’t apply, then where there is PJ over D

VENUE FOR CORPORATIONS:
1. Principle place of business
2. Any district in state of incorporation

VENUE IS USUALLY BASED ON WHERE D RESIDES (unless using substantial part of events test)

Question 370

What is “transfer of venue”/”forum non-conveniens”?

Answer 370

IF ORIGINAL VENUE WAS PROPER:
1. Court MAY transfer to another district
2. For the convenience of the parties and interest of justice
3. LAW OF ORIGINAL VENUE WILL APPLY

IF ORIGINAL VENUE WAS IMPROPER:
1. Judge MUST dismiss case OR transfer in interest of justice
2. If transfer, to any district where case could have originally be brought (msut be in same “system”)
3. IF BOTH PARTIES CONSENT TO IMPROPER VENUE - THEN IT IS OK!

Foreign Country Exception:
1. If the more convenient forum is in a foreign county, JUDGE WILL DISMISS
2. But, will usually stipulate to parties that they must refile case in foreign country
3. If D knows foreign court is not available - D must raise this issue when making initial motion for forum non conveniens, otherwise further relief from judgment is barred

Question 371

What is the “complaint” and its elements?

Answer 371

1. Filing of complaint commences statue of limitations (SOL)
2. Service to other party must be within 90 days of filing
3. Elements of Complaint:
   (a) Statement of Jurisdiction
   (b) statement of FACTS (not theories) - Fraud and special damages must plead with SPECIFICITY
   (c) demand for RELIEF

Question 372

What is contained in the “answer” and what defenses must be asserted in it?

Answer 372

1. Signed by lawyer
2. Either denies, admits, or states “not enough information”
3. Anything NOT denied (or claimed as not enough information) is deemed ADMITTED
4. Must be made within 21 days of service of complaint
5. AFFIRMATIVE DEFENSES MUST BE PLEAD IN THE ANSWER:
   (a) contributory negligence
   (b) statute of frauds
   (c) statute of limitations
   (d) Illegality
   (e) duress

Question 373

Discuss the 2 main ways to amend pleadings and what “relating back” means

Answer 373

1. Amendment as of right (once within 21 days of service of pleading)
2. Amendment by leave of court (Generally court allows - “when justice so requires”)

RELATING BACK
1. Amended pleadings with new claim/defense COULD relate back to original pleading for SOL purposes
2. Allowed for CLAIMS IF: AROSE OUT OF SAME CONDUCT, TRANSACTION, or OCCURRENCE
3. Allowed for PARTIES IF: Same transaction, within 90 days of filing party had notice, or new person knew/should have known they would be subject to suit but for mistake of ID

Question 374

What is the rule 11 Lawyer Misconduct Standard in relation to filing of claims? What does lawyer attest to?

Answer 374

1. Attorney signs to best of “knowledge, information, and belief” there is basis for the claim
2. Claim must be warranted by existing law
3. CLaim must have evidentiary support
4. There is no improper purpose for filing

Question 375

What is a “counterclaim”?

Answer 375

1. Defendant raises a claim back at the plaintiff
2. Compulsory Counterclaim:
   (a) same transaction or occurence
   (b) supplemental jurisdiction
   (c) must be brought or claim is barred
3. Permissive Counterclaim:
   (a) NOT same transaction or occurence
   (b) NEEDS independent jurisdiction (diversity or fed question)

Question 376

Discuss the two types of Joinder

Answer 376

PERMISSIVE JOINDER
1. Multiple P’s joining together in lawsuit
2. Single transaction or occurrence
3. Common questions of law/fact
4. P’s can join multiple D’s, but all P’s must agree to do it

COMPULSORY JOINDER
1. Party MUST be joined because unfair to litigate without them
(a) NECESSARY PARTIES: must be joined if their interest would be imparied by claim, Even if normally barred by the jurisidction, the case can still proceed
(b) INDESPENSIBLE PARTIES: If not joined, party would be “prejudiced” - IF BARRED BY JURISDICTION - MUST BE DISMISSED

Parties can add/join as many “claims” as they wish so long as the new claim has SMJ

Question 377

What are the 4 pre-requisites to a class action?

Answer 377

1. Size: case must be so large that individual claims are impractical (usually 100+)
2. Common Question
3. Typicality: Claims of named rep must be typical of the rest of the class
4. Fair Representation/Conflicts: Reps must adequately and fairly protect interest of class as a whole

Question 378

What are the 3 types of class actions?

Answer 378

COMMON QUESTION (b3 type) - Default
1. Mass tort claims
2. Members MAY opt out
3. NOTICE REQUIRED TO ALL MEMBERS (can be mailed)

INJUNCTION class action (b2)
1. Injunctive relief sought
2. Members CANNOT opt out
3. Notice to members at discretion of court

Impairment of Interest (b1)
1. Impairment of interests of class members (employment suit from class of employees)
2. Members cannot opt out
3. Notice to members at discretion of the court

Question 379

What are the diversity requirements for class actions?

Answer 379

1. The citizenship of the NAMED REP’s are what counts
2. If one named rep has a claim for more than $75000, other members can join even if their claim isn’t 75k
3. If sum total of claims is more than $5 million, NO MEMBER OF CLASS NEEDS TO HIT $75k Individually

Question 380

How does “certification” and “settlements” of class actions work?

Answer 380

Certification of Class
1. Court has discretion to approve/deny the certification of the class
2. If denied, class can appeal (or a smaller sub-class can re-file for certification)

Settlements
1. Must be approved by the court
2. Attorneys’ fees must be approved by the court
3. Statements detailing the agreement MUST be provided to the court

Question 381

Discuss the 2 types of intervention

Answer 381

Intervention as of right
1. Interest in property/transaction
2. interest is/will be impaired
3. NO court permission needed

Permissive intervention
1. Interveners claim/defense has a common question of law/fact
2. Court permission IS required

Question 382

What is “interpleader”, and what is IMPLEADER?

Answer 382

1 party owes something to 2 or more people, but distribution amount uncertain - owing party can force the opposing parties to fight it out to decide who gets what

1. Statutory Interpleader
   (a) nationwide service OK
   (b) ANY 2 claimants can be diverse
   (c) at least $500
   (d) deposit money/property with the Court
2. Rule Interpleader
   (a) Complete diversity between claimant and ALL opponents
   (b) no nationwide service
   (c) $75k
   (d) not required to deposit money with court
3. 3rd Party IMPLEADER
   (a) D believes that another party will have to cover the judgment that D incurs (indemnify them)
   (b) D can add 3rd party D who owes part or all of the claim

Question 383

What is a “cross-claim”?

Answer 383

Parties on the same side of litigation suing each other (P sues P, or D sues D)
ELEMENTS:
1. Co-party
2. Same transaction or occurrence
3. Actual damages (must be specific claim for damages)

Question 384

What information is “discoverable”?

Answer 384

Discoverable IF:
1. Not privileged
2. Relevant
3. Proportional to the needs of the case

Question 385

Is attorney work product discoverable?

Answer 385

Attorney (and their staff) work product is generally NOT discoverable UNLESS:
1. There is substantial need, AND
2. Cannot obtain without undue hardship

EXCEPTION: Attorneys mental impressions, conclusions, and legal opinions are completely immune from discovery

Question 386

What is discoverable in terms of witness information?

Answer 386

Names and locations of ALLL people who would be called as witnesses is discoverable

Question 387

What information about an expert witness is discoverable?

Answer 387

If EXPERT TESTIFYING:
1. Must provide ID
2. MUST provide experts report (contains opinions, basis for opinions, exhibits they will use, and compensation)

If EXPERT NOT-TESTIFYING:
1. Discoverable only in exceptional circumstances (when impractical)

Question 388

What documents and materials MUST be provided in discovery?

Answer 388

A list of the documents and materials that are going to be used MUST be provided

Question 389

What is the “duty to supplement”?

Answer 389

If you accidentally provide incomplete or incorrect discovery information, you must correct that mistake

Question 390

What are the 5 methods of discovery?

Answer 390

1. Depositions
   (a) can be written OR oral
   (b) Party OR non-party
   (c) Non-party - subpoena
   (d) Limit of 10 per side
   (e) Cannot depose same person 2nd time without court permission
2. Interrogatory
   (a) ONLY to a party
   (b) written/answered in writing
   (c) Limit of 25 per side
3. Request for admission
   (a) written request for OTHER party to admit something - if they do, conclusively established at trial
4. Request to produce documents
   (a) documents in other side’s possession/control (records, photos, whatever)
5. Physical or Mental exam
   (a) physical/mental state MUST be at issue
   (b) need a court order
   (c) must show good cause

Question 391

What are the options available if another party is abusing discovery process?

Answer 391

1. Object to request (information requested not relevant)
2. Protective order from the court (stop discovery for embarrassment, harassment, or undue burden)
3. Order to compel (go to the court to force other party to provide documents they should provide)

Court may order sanctions if one party is violating rules of discovery… sanction types are:
1. Force the other party to pay fees and costs
2. Court can establish facts for trial
3. Court can bar certain defenses
4. Court could dismiss actions
5. Court could hold someone in contempt

Question 392

What are the 3 pre-trial conferences/orders?

Answer 392

1. Conference of Parties
   (a) court MUST have conference and parties MUST submit discovery plan
2. Scheduling conference
   (a) Court MUST hold scheduling conference - must issue scheduling order within 90 days of complaint filing
3. Final pre-trial conference
   (a) court MAY have final pre-trial conference (usually to push for settlement)
   (b) If there is a conference, court MUST issue pretrial order
   (c) pretrial order can only be modified to prevent “manifest injustice”

Question 393

Discuss differences between temporary restraining orders and preliminary injunctions

Answer 393

TEMPORARY RESTRAINING ORDER:
1. NO NOTICE required
2. IMMEDIATE irreparable harm
3. Expires no more than 14 days (single up to 14 day extension available)

PRELIMINARY INJUNCTIONS
1. Notice & hearing required
2. To prevent irreparable harm
3. Granting/rejection can be immediately appealed

Question 394

What is the judges role in a “bench trial”?

Answer 394

1. Judge acts as finder of fact
2. Judge MUST STATE FINDINGS AND CONCLUSIONS!

Question 395

What are the 2 ways to dismiss jurors?

Answer 395

1. For cause (bias/connection to case - even appearance of bias enough) - unlimited number of strikes
2. Preemptory challenge (without cause): Limit of 3 per side - cannot dismiss based on race/gender

POOL OF JORORS MUST BE BALANCED AND REPRESENT OVERALL COMMUNITY

Question 396

What is a 12(b) motion?

Answer 396

1. Defendant is attacking complaint PRIOR to answer
2. For lack of SMJ (this can ALWAYS be raised)
3. THESE DEFENSES ARE WAIVED IF NOT RAISED IN FIRST FILING (either 12(b) or answer)
   (a) Lack of PJ
   (b) Improper Venue
   (c) improper service of process

Question 397

When can a motion for “failure to join a party” be raised?

Answer 397

May be raised before OR at trial

Question 398

What is a 12(b)(6) motion?

Answer 398

FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
1. Even if the facts are true, there is no recovery
2. Insufficient facts
3. Dismissal is with prejudice (unless court says otherwise) - party can usually petition to amend to fix problems
4. may be raised before OR at trial

Question 399

What is a “motion to strike” and when can it be done?

Answer 399

1. Motion to get rid of redundant, immaterial, or scandalous material
2. Can be done before responding to the pleading OR within 21 days of service

Question 400

What is a “motion for a more definitive statement”?

Answer 400

1. before responding to pleading
2. pleading is vague or ambiguous

Question 401

What is a “motion for summary judgment”?

Answer 401

1. No genuine dispute of material fact
2. can be done until 30 days AFTER discovery
3. if denied - NO APPEAL!
4. Burden on moving party - can engage in discovery, but AFFIDAVITS MUST BE BASED ON PERSONAL KNOWLEDGE
5. Partial SMJ allowed

Question 402

Discuss JMOL vs Renewed JMOL

Answer 402

Directed Verdict/JMOL
1. D can make this motion AFTER P has made their case
2. Either party can make this motion after BOTH parties have rested their case
3. “a reasonable jury would not have a legally sufficient evidentiary basis for the other party”
4. MUST motion for JMOL in order to preserve option to use Renewed JMOL

Renewed JMOL
1. MUST have filed a prior JMOL
2. Filed within 28 days after VERDICT
3. Judge may over turn verdict (did verdict lack sufficient evidentiary basis?)

Question 403

When is a “motion for relief from judgment” appropriate?

Answer 403

1. When there is a clerical error/mistake in judgment
2. FRAUD/MISCONDUCT from other party

Question 404

When is a “motion for a new trial” granted?

Answer 404

1. Error would have caused a different outcome
2. Judge erroneously admitted or excluded evidence
3. Improper conduct by party, witness, lawyer, jury
4. Verdict is against the clear weight of the evidence

Question 405

Discuss “remittitur” vs “additur”

Answer 405

REMITTITUR
1. New trial for excessive damages
2. UNLESS the winning party agrees to reduction in award

ADDITUR
1. NOT ALLOWED IN FEDERAL COURT (some states allow)
2. New trial because judge thinks award was NOT sufficient
3. UNLESS the losing party agrees to pay even more damages

Question 406

What is a “motion for newly discovered evidence” (after trial)?

Answer 406

Newly discovered evidence could mean a new trial IF:
1. Evidence was discovered after trial, AND
2. Party was reasonably diligent in searching for evidence before/during trial, AND
3. Evidence was material

Question 407

Name the 10 main defenses to contract formation

Answer 407

1. Age/minority (contract with minor is VOIDABLE at the discretion of minor: except for contract for necessities that the minor actually used - also, minor can affirm contract by words/performance at age of majority)
2. Mental illness (Contract is VOID)
3. Duress (wrongful threat induced acceptance)
4. Undue Influence (Uneven bargaining position - no ACTUAL threat)
5. Unconscionability (if we go forward, the result itself would be grossly unfair)
6. Illegality (illegal contracts are VOID)
7. Mistake
   (a) Unilateral Mistake (not a defense unless other party KNEW of the mistake OR there was clerical error)
   (b) Mutual/Bilateral Mistake (Both parties mistaken about material term - remedy is RESCISSION)
8. Misrepresentation
   (a) Intentional Misrepresentation (Knew/should have known falsity - with intent to induce reliance)
   (b) Negligent Misrepresentation (Causes innocent party to detrimentally rely based on bad information)
9. Non-Compete Clauses (The agreement must be “reasonable under the circumstances” - not too restrictive)
10. Statute of Frauds (marriage, contracts, land, executory contracts, guarantor, sale of goods 500 or more)

Question 408

What is a “default judgment”?

Answer 408

1. One party fails to plead OR defend
2. Court enters a default judgment for other party
3. Normally NOT a final judgment on merits; BUT, can be if other party initially participated and then stopped

Question 409

What is a “voluntary dismissal”?

Answer 409

1. Plaintiff voluntarily dismisses
2. Before answer/summary judgment (if after, needs court approval)
3. First time WITHOUT prejudice (if tried again, needs court approval or it will be with prejudice)

Question 410

What is “involuntary dismissal”?

Answer 410

Court orders dismissal (usually with prejudice) IF:
1. Failure to state a claim
2. Failure to obey a court order
3. Failure to prosecute

Court orders dismissal (usually without prejudice) IF:
1. Lack of jurisdiction
2. Lack of venue
3. Failure to join an indispensable party

Question 411

How do you deal with “judicial bias”?

Answer 411

Appearance of Bias:
1. You can challenge for cause only IF there is even an appearance of bias
2. Parties can waive this

Mandatory Recusal (cannot be waived):
1. Personal knowledge of facts
2. acted as lawyer with one of the lawyers involved in the case
3. Expressed an opinion on the merits while in government employment
4. Judge (or immediate family) has financial interest in subject matter/party
5. Violates due process

Question 412

Discuss Claim Preclusion (Res Judicata)

Answer 412

ELEMENTS:
1. Between the SAME ORIGINAL PARTIES (or those in privity with original parties)
2. Same transaction or occurrence
3. There WAS a final judgment on the merits in the first case
(a) if dealing with multiple claims, resolution of a single claim is NOT a final judgment

Merger/Bar
1. Merger (Plaintiff wins case - claim “merges” into judgment - CANNOT SUE ON SAME CAUSE OF ACTION
Bar (Plaintiff loses cases - barred from suing for the same cause of action)

Plaintiff CANNOT split claims from same transaction/occurrence into a bunch of small claims

RES JUDICATA BAR DOES NOT APPLY IF NO FINAL JUDGMENT! The following are NOT final judgments:
1. Dismissal for lack of jurisdiction
2. dismissal for improper venue
3. Settlements (unless after settlement, case dismissed with prejudice)
4. Voluntary dismissal (as long as P could still bring case again within SOL)
5. Default judgment (unless party participated in part of the case)

If law later changes, you cannot bring charges again based on the new law

Question 413

Discuss Issue Preclusion (Collateral Estoppel)

Answer 413

ELEMENTS:
1. Between 3 people (a new P or a new D against one of the original parties)
(a) a 3rd party cannot sue another 3rd party if neither was involved in original suit
2. Same/identical issue
3. Final judgment ON THAT ISSUE (not barred if settlement, default judgment, etc.)
4. Issue must be NECESSARY for the judgment
(a) the party that preclusion is asserted against MUST have had a full & fair opportunity/incentive to litigate

Hypos:
1. Due Process Issue
(a) same D, new P (first P lost)
(b) Defendant CANNOT use collateral estoppel to prevent new P from brining suit (due process)
2. Defensive Issue Preclusion
(a) Same P, new D (first D won)
(b) New D CAN use collateral estoppel as defense
3. Offensive issue preclusion
(a) GENERALLY BARRED
(b) New P, same D (first P won)
(c) New P cannot use collateral estoppel against same D

Question 414

What is choice of law rules for preclusion in diversity cases?

Answer 414

1. If first case was in federal court - APPLY FEDERAL PRECLUSIONARY RULE
2. If first case was in state court - APPLY RULES OF JURISDICTION OF FIRST CASE

Question 415

What is “full faith & credit”?

Answer 415

States must respect/honor each others judgments

Question 416

How long do you have to file a “notice of appeal” and on what grounds?

Answer 416

Filed within 30 days of the judgment

Grounds:
1. Objections made at original trial
2. MUST STATE GROUNDS
3. Waived if not preserved at original trial

Appellate court generally reviews issues of LAW - facts deferred to trial court

Question 417

When will an appeal of an error at trial court be successful?

Answer 417

1. Outcome would have been DIFFERENT
2. No appeal granted if error was “harmless”

Question 418

When can you appeal “interlocutory orders”?

Answer 418

1. Collateral orders
   (a) conclusively determined disputed question
   (b) resolves important issue separate from the merits
   (c) delay would cause irreparable damage
2. Injunctive Motions
   (a) denials/grants of requests for injunctions can be appealed prior to final judgment of case
3. Certifications/Denials of class action certifications can be appealed before final judgment

When dealing with multiple claims, one claim being resolved is NOT a final judgment and cannot be appealed unless the court finds “no reason to delay”

Question 419

What are the 3 standards of review?

Answer 419

1. De Novo
   (a) issues of LAW
   (b) NO deference to lower court
2. Abuse of discretion
   (a) court errors, relevancy, prejudice, admissibility
   (b) NO deference to lower court
3. Clearly Erroneous
   (a) issues of FACT
   (b) deference to lower court

Question 420

Discuss the Erie Doctrine

Answer 420

1. Choice of Law (stat vs state or federal vs state)
2. Applies to DIVERSITY cases only

Federal VS state law
1. Apply STATE substantive law (this is usually the answer)
(a) statue of limitations is state substantive law for instance
2. Apply FEDERAL procedural law (only apply if obviously talking about federal procedure)
(a) Venue is procedural, as is right to a jury - so ALWAYS federal

State vs State
1. Apply the law of the state where the federal court sits

Question 421

Discuss the differences between TRO and Preliminary injunctions

Answer 421

TRO
1. Can be granted without notice to opposing party
2. Immediate irreparable harm
3. No longer than 14 days (with a single up to 14 day extension) - expires at time stated in order

Preliminary injunction
1. Requires notice & hearing
2. Irreparable injury
3. Likely to succeed on merits
4. Harm to moving party outweighs harm to other party