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.
