bar prep Flashcards
Res Ipsa Loquitur elements
(1) the event is of a kind which ordinarily does not occur in the absence of negligence; (2) it is more likely than not that D’s negligence was responsible for the event; and (3) P was not responsible for the event
Not hearsay - legally operative acts examples
words of a contract offer or acceptance, libel, slander, threats, making a gift
Crim law - Common Law Assault
(1) attempting to commit battery; or (2) intentionally causing the victim to fear an immediate battery
Oral agreements to settle a boundary dispute are enforceable if
the parties subsequently accept the line for a sufficient time
Doctrine of forum non conveniens applies
when the most convenient court is a foreign one BUT US court has no power to transfer venue outside of the US (gotta dismiss and let P refile elsewhere)
If a government agent directs a citizen to search another, does the 4A apply?
Yes
4A - elements of consent to an illegal search
(1) the consent must be unforced and the result of an informed decision; (2) the search must not exceed the scope of consent; and (3) the consenting party must have authority to consent
“eggshell” plaintiff rule
a D is liable for the full consequences of a P’s injury even though, due to the P’s peculiar susceptibility to harm, those consequences were more severe than they would have been in a normal person
What kind of jurisdiction? “A conveyance of an estate in land, other than a lease for less than one year, shall not be valid as against any subsequent purchaser for value, except such persons having notice of it, unless the conveyance is properly recorded”
Notice Jurisdiction
Shelter Rule
a person who is not protected under the recording act can shelter under their grantor who is protected under the recording act (claim same protection as their grantor)
Takings Clause - “Public use” meaning
Means “public purpose.” State has the power to take private property and transfer it to a private developer if the proposed development benefits the public.
The Constitution bars the federal and state governments from passing an ex post facto criminal law. Elements?
A statute is considered impermissibly to alter a criminal law retroactively if it: (1) makes criminal an act that was not a crime when committed; (2) prescribes greater punishment for a crime after its commission; (3) decreases the amount of evidence required for conviction; or (4) extends the limitations period for a crime as to which a previously applicable limitations period has already expired
Foreclosure sales/deficiency judgments - what is an upset price/what is its effect?
When parties set an upset price, that means that the foreclosure sale price was set at a minimum of (w/e upset price is)
if property sells less than upset price, person only liable to make up difference between the upset price and the amount still owed under the mortgage
Parol Evidence Rule
governs the introduction of evidence relating to the negotiations, both oral and written, that led up to the formation of a written contract. Parol evidence to explain or interpret terms is always admissible but parol evidence offered to contradict or supplement a written contract is not always admissible, depending on how fully the parties integrated the written contract and its various provisions. Evidence of unsatisfied conditions precedent and evidence regarding subsequent contracts are not barred by the parol evidence rule.
Illusory Contract
contains an unenforceable promise due to indefiniteness or lack of mutuality, because only one side is bound to perform
Requirements for party to file a motion for sanctions (safe harbor provision)
A party may not file a motion for sanctions without first serving the motion upon the opposing party and providing the opposing party with 21 days to withdraw or correct the offending pleading, written motion, or other paper.
Contracts - Common law - Mutual Modification
requires both parties agree to a performance that is different from that required in the original contract, and, the difference in performance is not a mere pretense
When is interpleader used?
where a P has some holding that would expose the P to multiple liability from adverse claims. The stakeholding party, or “stakeholder,” can commence an action for interpleader to resolve liability where there are two or more adverse claimants. However, interpleader is only applicable where multiple claims demand the same thing or obligation–usually a piece of property, prize, or insurance policy.
Harmless Error
is an error by a judge in the conduct of a trial which an appellate court finds is not sufficient for it to reverse or modify the lower court’s judgment at trial. Harmless error would include (1) a technical error which has no bearing on the outcome of the trial; (2) an error that was corrected; (3) where the issue affected by the error was found in the appellant’s favor; and (4) where the appeals court views that even though there were errors, the appealing party could not have won the trial in any event.
A federal court has the power to grant a motion to dismiss a claim voluntarily without prejudice except when?
the court may not dismiss the case over the objection of the D if the D has filed a counterclaim that could not remain pending for independent adjudication (compulsory counterclaim only within supplemental jurisdiction)
How must a criminal D request a jury instruction for a lesser-included offense?
A criminal D is not entitled as a matter of right to a jury instruction for a lesser-included offense. A D must request such an instruction and point to testimony or facts that indicate that the request is reasonable. (could jury reasonably conclude D committed the lesser offense?)
What should P do if they believe an action was removed to federal court improperly?
make a motion for remand to the federal judge assigned to hear the action
When can a renewed JMOL motion be filed?
Within 28 days after a verdict is delivered IF the party timely filed a JMOL between the close of the non-moving party’s case and the submission of the case to a jury.
Standard for granting renewed JMOL
whether no reasonable jury could interpret the evidence presented as supporting the verdict reached
Contracts - impossibility defense
Excuses performance by both parties when performance has been rendered objectively impossible AND the contingency that arose was unknown to both parties.
Ouster
Requires more than using the property exclusively and paying the taxes. A physical act or an act in direct contravention of the co-tenant’s rights must occur. (can obtain ousted party’s interest via adverse possession)
Defamation action against a private party and the subject matter is not a matter of public concern - actual malice required?
No
Torts - implied assumption of the risk defense
Assumed an inherent risk, which are those that are unavoidable despite the exercise of all due care (injury foreseeable for activity involved)
Privileges and Immunities Clause of Article IV, Section 2
Prohibits states from discriminating against nonresidents with respect to “essential activities” or “fundamental rights.” However, corporations and aliens are not “citizens” for purposes of this clause.
Uniform Vendor and Purchaser Risk Act
The risk of loss remains with the seller during the period after the contract was executed but before the deed has been conveyed. However, the risk of loss transfer to the purchaser once the purchaser takes possession or takes legal title.
UCC - Adequate Assurances
Requires demands for adequate assurances be in writing
What to do if judgment issue has clerical error?
file motion in the trial court to have the judgment corrected
Contract - waiver of conditions
Either party to a contract may waive a condition or conditions. A waiver can occur by words or actions. By performing anyway, after the failure of a condition, the party gives up the right to satisfaction of the condition and his performance becomes obligatory.
The Contract Clause
applies to state legislation, but not state court decisions or the federal government. A private contract may be modified by the legislature under its police power when necessary to serve an important and legitimate public interest, and the regulation is reasonable and narrowly tailored to promote that interest
intentional tort defense - consent
If a P consented to the D’s act, the D will not be liable for otherwise tortious conduct. Consent may be express or implied. Consent is implied if a reasonable person would infer consent from the P’s conduct. However, a D may exceed a P’s consent if the D goes beyond the conduct to which the P has consented.
5A and 6A right to counsel
Before charges, a criminal D enjoys 5A right to counsel; after formal charges, a D has the right to counsel under 6A
Criminal - False Imprisonment
requires that the perpetrators intentionally confined the victims and that such confinement was unlawful. The victims must be fully confined, and they are not required to actively search for an escape route. Must be no reasonable means of escape.
Standard for Criminal D to prove affirmative defense
by a preponderance of the evidence
Best Evidence Rule
requires a proponent to provide the original of a writing, recording, or photograph when seeking to prove its contents. To apply, the proponent of the writing must be trying to prove the contents of the writing, not merely that it exists, was delivered, was executed, or that a transaction was memorialized by a writing. The rule applies when a party is trying to establish the terms or wording of a legally operative document, such as a will or contract. In such a case, the proponent must produce the original writing UNLESS the proponent can establish that the original is unavailable. Secondary evidence of the contents of a writing is admissible if the originals are shown to be lost or destroyed unless the proponent lost or destroyed them in bad faith. Generally, the proponent will also have to show that he or she engaged in a reasonably diligent search.
Duty of care owed to invitee
Invitees are owed the duty to inspect and make safe
Strict liability - assumption of risk defense
Where a P discovers or is warned of a dangerous defect and voluntarily and unreasonably continues to use the product, such continued use is usually regarded as assumption of the risk and bars the P’s recovery in strict products liability. However, this defense is generally construed very narrowly. A P’s continued use of a product that the P knows to be defective is not considered voluntary if there are no practical alternatives to such use.
Anticipatory Repudiation
If a party to a valid contract unequivocally indicates that it will not perform by either words or conduct prior to the time set for performance, then that party has breached the contract with the other by anticipatory repudiation. The aggrieved party may then either suspend its performance and immediately sue for damages, or urge the other party to perform, wait until the time for performance has passed, and sue for damages if the other party has not performed.
Search incident to a lawful arrest
the area that may be searched must be limited to the person arrested and the area within the person’s immediate control unless the officers have a reasonable and articulable suspicion that accomplices who might threaten the police are on the premises.
When do statutes of limitations on suits based on present/future covenants start to run?
Present - when title passes; Future - not until the grantee’s rights have been disturbed or the grantee becomes aware of the encroachment.
Witness Qualifications
Unless otherwise provided in the Federal Rules of Evidence, every person is competent to be a witness. A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Before testifying, a witness must give an oath or affirmation to testify truthfully.
Evidence - Relevance
Evidence is relevant if it tends to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. Rule 403 requires the judge to balance competing interests of probative value and other concerns. Rule 403 will only exclude that evidence that is significantly more prejudicial than probative and sets a low bar for admissibility.
Character Evidence for Truthfulness
A witness’s credibility may be attacked by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness or testimony in the form of opinion about that character. Except for a criminal conviction under Rule 609, extrinsic evidence is inadmissible to prove specific instances of a witness’s conduct in order to attack the witness’s character for truthfulness.
Riparian Rights
Under Michigan law, riparian rights are rights in water enjoyed by an owner of land that abuts a navigable natural river, stream, or lake. Riparian rights of an owner include the right to erect and maintain docks along the owner’s shore and the right to anchor boats permanently off the owner’s shore. Whether or not an owner possesses riparian rights is determined by the language of the plat dedication. Nonriparian owners and members of the public who gain access to a navigable water body have a right to use the surface of the water in a reasonable manner for such activities as boating, fishing, and swimming.
Easement - Definition
An easement is an interest in the land of another
Public Trust Doctrine
applies to the Great Lakes, which means that members of the public may walk along the shoreline below the ordinary high water mark even when the lakefront property is privately owned.
Unilateral modification of easement
Once granted, an easement cannot be modified by either party unilaterally. The owner of the easement cannot materially increase the burden of the easement on the servient estate or impose a new and additional burden on it. Further, if an easement is granted expressly through a writing, Michigan courts will reject a party’s attempt to expand the scope of the easement beyond the express language granting the easement. The court will look to the parties’ intent as expressed in the plain language of the document
First-Degree Premeditated Murder - Michigan
At common law, murder is defined as the unlawful killing of a human being with malice aforethought, absent any legal excuse or justification. Under Michigan law, first degree murder is murder where the perpetrator uses poison, lies in wait, or any other willful, deliberate, and premeditated killing
Corpus delicti - homicide
In Michigan criminal homicide cases, proof of the corpus delicti is required before the prosecution may introduce the inculpatory statements of an accused. The purposes of this requirement are (1) to preclude a conviction for a criminal homicide when none was committed; and (2) to minimize the weight of a confession and require collateral evidence to support a conviction. A D’s confession may not be admitted unless there is direct or circumstantial evidence independent of the confession establishing (a) the occurrence of the specific injury; and (b) some criminal agency as the source of the injury
Motion to Suppress as Unduly Suggestive
In Michigan, any lineup, show-up, or photo identification will be inadmissible as a violation of due process when the identification is unnecessarily suggestive and likely to produce an irreparable mistaken identification
Motion to Suppress based on Totality of Circumstances
Under Michigan law, where an identification is both suggestive and unnecessary, it can still be admissible if it is reliable based on the totality of the circumstances. The following factors are considered and then balanced against the degree of suggestiveness: (1) the opportunity to view the criminal at the scene; (2) the witness’ degree of attention; (3) the accuracy of the witness’s description; (4) the degree of certainty of the witness; and (5) the time interval between the crime and the identification
Motion to suppress identification based on the right to counsel
In Michigan, the right to counsel attaches upon the start of adversary proceedings, to which an indictment would qualify. After formal charges are filed, the D has a right to have counsel present at a lineup. However, no right to counsel exists at police lineups conducted before the accused is indicted.
First Amendment - Free Spech
forbids government abridgement of the freedom of speech and applies to the states pursuant to the Due Process Clause of the Fourteenth Amendment. Generally, unless a ban on speech is narrowly tailored to serve a compelling governmental interest.
1A - Expressive Conduct
A law that regulates conduct but creates an incidental burden on speech is allowable if it furthers an important or substantial government interest unrelated to the suppression of free expression, and the incidental restriction on speech is no greater than is essential to the furtherance of that interest.
Unprotected Speech
speech intended and likely to incite imminent violence, fighting words, hostile audience speech, obscene speech, and defamatory speech
Dramshop Act
In Michigan, the Dramshop Act makes it illegal to sell alcohol to a minor or a visibly intoxicated person. A person injured by a minor or visibly intoxicated person has a cause of action against a person who unlawfully sold, gave, or furnished the alcoholic liquor to the person who caused the injury, provided that the unlawful sale is a proximate cause of the injury.
UCC - Goods definition
all things that are movable at the time of identification to the contract
UCC - Firm Offer
Arises when a merchant makes a definite, committed offer to an offeree, in a signed writing, with an assurance that the offer will be held open until a certain point. A firm offer cannot have a binding period longer than three months. A firm offer may not be revoked during the pendency of its term absent consideration
UCC - Merchant
A person who deals in the types of goods involved in the transaction
Offer
an indication of willingness to enter into a contract that may be formed solely by the other party’s assent. An offer is definite when its terms, particularly price and quantity, are specified
For offer to be communicated to offeree
offeree must have received and understood the communication
UCC applies
to the sale of goods between merchants
Delegation and Assignment 0 UCC
The default presumption is that assignment and delegation are permissible. Obligations and responsibilities can be delegated absent agreement to the contrary or unless there is a particular reason the promise needs performance by the specific promisor. Rights can be assigned except where assignment would materially change the other party’s duty or materially impair the other party’s chance of receiving full performance under the contract
UCC - modification
Contract modifications made in good faith are binding even in the absence of consideration
Liquidated Damages Clause
Unenforceable if it is found to constitute a penalty. Relevant inquiries include the intent of the parties, reasonability of the clause at the time of contracting in relation to the anticipated harm, and reasonability of the clause in relation to the harm and losses that actually occurred due to the breach
Consequential or Special damages
A breaching party is liable for general damages naturally flowing from a breach, but not for special or consequential damages, which are those damages that result from the particular circumstances of the aggrieved party unless, at the time of contracting, the breaching party knew or had reason to know that the consequential damages would result from the breach.
Contracts - Shipment Contract - Risk of Loss
When a seller must send goods to the buyer but is not required by contract to deliver them to a particular destination, a shipment contract is formed. Under a shipment contract, the seller has fulfilled its obligation to deliver once it has brought the goods to a common carrier, made reasonable arrangements for the delivery, and informed the buyer that the shipment is occurring. When a contract is silent as to who bears the risk of loss, the risk of loss is on the seller until its delivery obligation is completed. Once the delivery obligation is completed, the risk of loss is on the buyer
Substantial Breach
Only a substantial or material breach will allow the non-breaching party to end the contract without incurring liability. In Michigan, the first party who commits a material breach of contract cannot prevail against the other party for the other party’s subsequent breach or failure to perform. A breach is substantial when the non-breaching party has not obtained the benefit it reasonably expected to receive from entering the contract. Factors to consider include (1) the extent to which damages can provide adequate compensation; (2) the extent of part performance; (3) the comparative hardship of termination; (4) willfulness of the breaching party’s conduct; and (5) whether the breaching party will perform the remainder of the contract
Recovery from both Workers’ Comp and Civil Tort
A person injured during the normal course of her employment is generally entitled to the collection of worker’s compensation benefits from the insurer. Worker’s compensation is the employee’s exclusive remedy against her employer. The receipt of benefits does not preclude the employee from pursuing third parties outside the employment relationship under normally prevailing theories of liability. A third-party recovery will be used to offset workers’ compensation benefits.
Workers’ compensation applies
when the employee’s injury arises out of and in the course of her employment. An employee going to or from her work, while on the premises where the employee’s work is to be performed, and within a reasonable time before and after her working hours, is presumed to be in the course of her employment
Valid Gift definition
A gift is a voluntary transfer of property by one person to another without any consideration.
Valid Gift elements
(1) donative intent, (2) delivery, and (3) acceptance. Acceptance is presumed where the gift would be beneficial to the donee.
Abandonment of Personal Property
Abandonment is a voluntary relinquishment of rights with no intent to reclaim them. The intent to abandon must be accompanied by some act or omission that indicates that the possessor neither claims nor retains any interest in the property. Intent may be inferred from the surrounding circumstances
Lawyer duties to former client
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as rules on confidentiality and candor would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as rules on confidentiality and candor would permit or require with respect to a client.
Firm represent someone with interests adverse to a departed lawyer’s client
can represent unless (a) the matter is the same or substantially related to one the departed lawyer worked on; and (b) any lawyer remaining in the firm has confidential information that is material to the matter. In such a case, the affected client may waive the disqualification
No-Fault Act - Tort liability
No-Fault systems abolishes tort liability arising from the ownership, maintenance, or use within Michigan of a motor vehicle, with respect to which the required security was in effect, except for: (1) intentionally caused harm to persons or property; (2) damages for noneconomic loss if the injured person has suffered death, serious impairment of bodily function, or permanent serious disfigurement; (3) damages for allowable expenses, work loss, and survivor’s loss in excess of the daily, monthly, and three-year limitations contained in the No-Fault Act; (4) damages for economic loss by a nonresident in excess of the personal protection benefits provided for by the No-Fault Act; and (5) damages up to $500 to motor vehicles, to the extent that the damages are not covered by insurance.
No-Fault - determining whether there has been serious impairment of bodily function
courts use a three-prong test based on whether there is an objectively manifested impairment of an important body function that affects the person’s ability to lead their normal life
Equitable Division of Marital Estate
Upon a divorce, the courts apportion the marital estate, equitably dividing it in light of all circumstances. Each married individual’s separate property consists of real and personal property brought into the marriage or acquired with separate property during the marriage as well as property received by a married party as an inheritance and is kept separate from marital property. While separate assets are generally not subject to division, all or a portion of one spouse’s separate property may be awarded to one spouse where the other contributed to the acquisition, improvement, or accumulation of the separate property. Marital property is the real and personal estate that has come to either party by reason of the marriage. Placing a spouse’s name on the property does not render the property marital as opposed to separate property
Alimony
Under Michigan law, spousal support is a court-ordered sum of money paid by one party to the other in order to provide the receiving party the economic means to support himself after the dissolution of the marriage. Specific factors to be considered in deciding whether to award spousal support include: (1) the length of the marriage; (2) the parties’ ability to pay; (3) the parties’ past relations and conduct; (4) the parties’ ages and health; (5) the parties’ needs and ability to work; (6) the parties’ fault, if any; and (7) any other circumstances of the case
