Bar Review Flashcards
Termination of Agency
A) Manifestation to terminate (Apparent not until communicated to 3rd party)
B) Term of authorization expires
C) Death of either party
D) Incapacity of either party
Actual Authority
A) Express - explicitly told the agent
B) Implied - i) agent believes action is necessary to carry out duties ii) Agent acted similarly previously iii) customary for agent to act
Act within reasonable understanding of the authority
Apparent Authority
1) 3rd party reasonably believes person has authority to act on behalf of principal
2) Belief traceable to principal’s manifestations (holding out - A) position/title B) previous holding out/no published revocation C) cloaked in appearance)
Ratification of Agent’s Act
1) Agent had no authority
2) principal had knowledge of all material facts
3) principal manifests assent
Agent still liable for ratified for undisclosed principal
Independent Contractor Factors
1) Extent of control
2) Agent engaged in distinct occupation/business
3) type of work
4) Type of Payment (hourly v. per project)
5) who supplied tools/equipment
6) degree of supervision
7) degree of skill required
8) job part of principal’s regular business
9) length of service
10) intention of the parties
11) hired for a business purpose
Respondeat Superior Factors
A) conduct is kind employee is employed to perform
B) occurs substantially within the authorized time/space
C) Serves the employer
Disregard of employer’s directions insufficient
Respondeat Superior Intentional Torts
Not within scope of employment unless
A) specifically authorized
B) Driven by a desire to serve the employer
C) naturally occurring friction
Vicarious Liability
A) principal intended the conduct B) Principal was negligent/reckless in control of agent C) Non-delegable duty D1) apparent authority D2) actions constitute tort D3) 3rd party relied on authority
Vicarious Liability for Independent Contractors
Generally not liable A) inherently hazardous activity B) Non-delegable duty C1) principal holds the IC to be his agent C2) 3rd party reasonably relies C3) harmed suffered
Fiduciary Duties
1) Duty of Care - act reasonably
2) Duty of Loyalty - act for the principal’s benefit
3) Duty of Obedience - obey reasonable directions
Supplemental Jursidiction
Common Nucleus of operative fact
Exceptions-
A) Cannot violate complete diversity
B) Cannot be used by original plaintiff against 3rd party defendant
Court may decline - A) raises novel/complex state law issue B) state claim predominates federal claim C) federal court has dismissed federal claims D) exceptional circumstances
Must decline primarily domestic relations issues
Diversity in Class Action
1) Exceeds $5M [aggregate individual class claims]
2) 100+ class members
3) minimal diversity (any diversity) - may decline when non-diverse parties constitute 1/3 to 2/3s; must decline if non-diverse constitutes greater than 2/3s
Must decline - State government primary defendants; securities or corporate fiduciary claims
Removal
Sitting in the State where Claim was filed
1) Subject matter jurisdiction
2) Defendants agree
3) no Defendant resident of forum state
4) sought within 30 days (not 1 year after commencement)
Removal Procedure
1) File Notice of Removal in federal court [state basis for jurisdiction; include filed summons/complaint]
2) Serve Notice on all parties
3) File copy of removal with state
Removal is automatic
Personal Jurisdiction
Same extent as the State which the federal court is located
1) Traditional bases
2) State’s Long- Arm Statute
Obtaining Personal Jurisdiction
A) Domicile
B) Presence in State during Service of Process
C) Consent
D) Wavier (appearance without objection)
Personal Jurisdiction Constitutional Requirements
1) Minimum Contacts (General & Specific)
2) Not offending notions of fairness and justice
Personal Jurisdiction - General Jurisdiction
Defendant is at home in the jurisdiction (Domiciled)
Jurisdiction does not arise from where the claim took place
Personal Jurisdiction - Specific Jurisdiction
Jurisdiction arises out of defendant’s contacts with state which are related to the underlying claim
Personal Jurisdiction Fair Play and Justice
Burden on defendant to show unreasonable; Factors-
A) Burden on defendant to litigate in state
B) states interest in providing a forum
C) plaintiff’s interest
D) Interest of the judicial system in efficiency
Service of Process
1) within 90 days of filing compliant
Extension permitted on good faith showing
2) Server is at least 18 years old
3) Server is not a party
Service of Process on an Individual
A) To the person
B) Someone of suitable age/discretion living at the current dwelling
C) to an authorized agent
D) Accordance to state law (forum state or place of service)
Venue
Proper where (at the time the suit is filed)
A) any defendant resides
B) Substantial portion of claim occurred
C) Substantial portion of property located
D) Not A-C then where there is personal jurisdiction
Transfer of Venue
When Original Venue was Proper -
1) convenience of parties
2) could have initially been brought in new venue
[Transferee court applies law of transferor court]
When Original Venue was not proper-
A) must dismiss
B) transfer if interests of justice requires
Erie Doctrine
1) Diversity of Citizenship SMJ
2) Federal Court applies Federal Procedural Rules
3) Federal Court applies substantive law [including Choice of law rules - must apply the law as the state court would]
Preliminary Injunction
May Issue when
1) notice to adverse party
2) moving party gives security
Traditional Test 1) success on the merits likely 2) irreparable harm likley 3) harm to movant outweighs harm to other party 4) in public interest [if money damages sufficient then deny]
Temporary Restraining Order
1) immediate irreparable harm
2A) Notice given (same elements at Prelim Injunction)
2B) Without Notice
2Bi) sworn statement with specific facts that immediate irreparable harm will result
2Bii) certifies in writing efforts of giving notice & why no notice should be given
2Biii) gives security
[lasts 14 days, 1 renewal permitted - good cause or consent]
Pleadings - Amendment
A) As of Right within 21 days
B) Written Consent
C) Leave of Court
Waived Defenses if not Plead
A) Lack of Personal Jurisdiction
B) Improper Venue
C) Insufficient Process
D) Insufficient Service
Amendment Relation Back
A) Arose from same Transaction/Occurrence
B) Statute of Limitation Allows
Changing Party/Party Name
1) Arose from same Transaction/Occurrence
2) New party received notice of original notice within 90 days of filing
3) new party knew or shouldve known about the mistaken identity
Counterclaim
Defendant against Plaintiff
Compulsory - 1) arises out of same transaction/occurrence 2) does not require adding another party that court doesnt have jurisdiction over
Cross-Claims
Claim against a co-party
1) Same Transaction of Occurrence
Rule 11
All papers must be signed by attorney
1) not being presented for any improper purpose
2) legal contentions are warranted
3) factual contentions have evidentiary support
4) denials of factual contentions are warranted
[Does not apply to discovery or discovery motions]
[Sanctions within discretion of the court - no monetary sanctions against a client for attorney’s contentions - sanctions as deterrent]
Joinder
Multiple Plaintiffs or Defendants - 1A) joint and several relief is asserted 1B) claim arises out of the same transaction/occurrence 2) common question of law/fact 3) subject matter jurisdiction [mis-joinder not grounds for dismissal]
Required Joinder
1) necessary party
1A) cannot grant complete relief without absent party
1B) absent party claims an interest in action that would be impaired or impeded
1C) substantial risk of multiple liability/inconsistent obligations
2) joinder is feasible
Impleader
Third party action
1) 3rd party may be liable to the defendant
2) for all or part of the claim against the defendant
Derivative liability required
Leave of court required to implead 14 days after original answer
Class Action
Certification of Class:
1) Numerosity
2) Commonality
3) Typicality
4) Adequacy of Representation
Attorney Work Product Discovery Exception
1) a substantial need for the materials
2) materials cannot be obtained without undue hardship
Sanctions for a Pre-Trial Motion
A) party/attorney fails to appear B) does not participate in good faith C) Substantially unprepared D) fails to obey a scheduling [Can only modify final pre-trial conference order to prevent manifest injustice]
Motion to Dismiss
1) Consider the facts in the light most favorable to non-moving party
2) Any basis which relief can be granted
A) lack of SMJ B) Lack of PJ C) Improper Venue D) Insufficient Process/Service of Process E) Failure to state a claim F) Failure to join necessary parties
Motion for Summary Judgement
1) no genuine issue of material fact [reasonable jury could return a verdict]
2) entitled to judgement as a matter of law
3) evidence viewed in the light most favorable to the non-moving party
[any time until 30 days after the close of all discovery]
Motion of Judgement as a Matter of Law
1) Any time before submitted to Jury
2) non-moving party fully heard on an issue
3) reasonable jury would not have a legally sufficient basis to rule for non-moving party
4) court must draw all reasonable inferences in light most favorable to the opposing party
Appellate standard - A) jury’s factual findings are not supported by substantial evidence B) legal conclusions not supported by factual findings
Renewed Judgement as a Matter of Law
1) moved for JMOL
2) Within 28 days of judgment entry
3A) allow verdict
3B) order new trial
3C) direct the entry of JMOL
Claim Preclusion
1) parties are identical
2) court of competent jurisdiction
3) final judgement on the merits
4) same claim was involved
Issue Preclusion
1) valid and final judgement
2) issue is identical
3) issue was actually litigated, determined, essential
4) full and fair opportunity to litigate
Appeals
1) may only appeal final judgement [ends the litigation on the merits]
Exceptions -
A) 1) multiple parties/claims 2) final judgement for some of the claims/parties 3) court expressly determines no reason for delay
B) injunctions, receiverships, orders affecting possession of property, liability in an admiralty action, patent infringement
C) Circuit court certifies and Court of Appeals agrees
D) interlocutory order conclusively determines disputed question, resolves important issue completely separate from the merits, effectively unreviewable on appeal
Relevant
1) any tendency to make a fact more or less probable
2) fact is of consequence
Admissible unless rule of exclusion applies
Exclusion - probative value is substantially outweighed by A) unfair prejudice B) misleading the jury C) wasting time D) undue delay E) wasting time F) cumulative
Unfairly prejudicial
1) unnecessary
2) make jury improperly sympathize/dislike party
Subsequent Remedial Measures
1) would have made an earlier injury/harm less likely to occur
2) Not admissible to show:
A) negligence
B) culpable conduct
C) defect in product/design
D) need for a warning/instruction
Allowed for impeachment/prove disputed ownership/control
Compromise/Settlement Offers
Not admissible to show:
A) prove validity/amount of a disputed claim
B) to impeach by prior inconsistent statement
Allowed to show bias, refute undue delay, obstruction in a criminal matter
Pleas Deals/Negotiations
Not admissible in subsequent case:
A) statements made during plea discussions
B) nolo contendere plea
C) guilty plea later withdrawn
Offers to pay medical expenses
Not admissible to prove liability
Except - related statement/factual admissions are admissible
Liability Insurance
Not admissible to prove culpability
Admit for another purpose - bias, agency, ownership, control
Authentication of Physical Evidence
Must authenticate
A) witness testimony
B) substantially unbroken chain of custody
Authentication of Voice Recordings
may be authenticated by anyone who
1) heard the person speak
2) Identified the recorded person as the speaker
Authentication of Handwriting
Non-expert testimony allowed
1) handwriting is genuine based on a familiarity with the writing
2) familiarity with handwriting not acquired for the current litigation
Comparison by jury or expert; responsive letter
Original Writing Rule
Original Writing, Recording, Photograph required Unless-
A) reliable duplicate
B) all originals lost or destroyed
C) cannot be obatined by any available judicial process
D) not produced after proper notice
E) not closely related to a controlling issue
Character Evidence
Character not admissible to show propensity; Except Criminal Cases -
A) Defendants Character (defense only, prosecution as rebuttal)
B) Victims Character (not in rape cases, prosecution can rebut with victim good character or defendant bad character) [self-defense case; victim’s character for peacefulness]
Methods of Proving Character
Direct Examination - Opinion or Reputation
Cross Examination - Opinion, Reputation, Specific Act
Prior Bad Acts
Not admissible to show propensity Non- Propensity Purposes (MIMIC) M) Motive I) Identity M) Mistake, Absence of I) Intent C) Common Plan of Scheme/Opportunity/Preparation 1) act was committed 2) probative value substantially outweighs prejudice
Habit or Routine
Admissible to prove party acted in accordance with the habit/routine
Habit - regular response to a repeated situation
1) specificity
2) repetition
3) duration
4) semi-automatic/reflexive
Impeachment - Prior Inconsistent Statement
Admissible to Impeach
Extrinsic Evidence admissible 1) relevant to material issue and 2) proper foundation [1) witness given opportunity to explain 2) adverse party can examine witness about it]
Impeachment - Prior Convictions
Felony/Misdemeanor involving Dishonesty Admissible
Felonies not involving dishonesty - A) witness is not a defendant B) defendant witness in a civil case [probative value outweighs prejudicial]
Within 10 years of conviction/release
Not admissible if pardoned/Annulled based on finding of innocence
Impeachment - Specific Instances of Conduct
Cross Examination Only
Instance is probative for the witness’s character for truthfulness
NO extrinsic evidence
Impeachment - Character for Truthfulness
Untruthful Character - Reputation or Opinion [anytime]
Truthful Character - only after truthfulness has been attacked
Impeachment - Ability to Observe, Remember, Relate
Cross Examination
Extrinsic Evidence admissible
Impeachment - Bias
Bias, interest, motive, partiality, corruption always relevant
Impeachment - Hearsay Declarant
May impeach a hearsay declarant as if the declarant was a witness at trial
May admit inconsistent statements/conduct that would be otherwise hearsay for impeachment
Refreshing Recollection
1) witness once had personal knowledge of the matter
2) unable to recall the matter
Witness can read the document [only opposing party may offer the document into evidence]
Lay witness
1) comptent [presumed]
2) has personal knowledge
3) Opinion allowed if: 1) based on witness’s perception 2) helpful fact in issue 3) not based on specialized knowledge
Expert Witness
1) qualified as expert
2) Opinion is helpful to jury
3) Witness Believes opinion to a reasonable degree of certainty
4) Opinion supported by sufficient facts
5) Opinion based on reliable principles/methods that were reliably applied
Criminal case - no mental state opinion about defendant
Hearsay
1) out of court statement [assertion; oral, written, conduct]
2) offered to prove the truth of the matter asserted
multi-level hearsay - each must fit within exception
Non-Hearsay Statements
1) Verbal Acts of independent legal significance
2) show the effect on the listener
3) prior inconsistent statement used to impeach
4) circumstantial evidence of speaker’s state of mind
Hearsay Exclusion - Statements by a party opponent
A) any statement offered against an opposing party
B1) made by the party
B2) adopted by the party [silence sufficient in reasonable person would have denied]
C) person was authorized to make a statement
D) made by agent/employee
E) made by co-conspirator in furtherance of a conspiracy
Hearsay Exclusion - Prior Statements by a witness
1) declarant testifies
2) declarant subject to cross examination
3A) statement was inconsistent with witness testimony [previous testimony was given under penalty of perjury]
3B) identifies a person
3C) consistent with witness testimony and offered to i) rebut the declarant is lying ii) rehabilitate the declarant’s credibility
Hearsay Exception - Present Sense Impression
1) statement describing an event made by the declarant
2A) while observing the event
2B) immediately thereafter
Hearsay Exception - Excited Utterance
1) statement relates to a startling event
2) statement made while declarant was under the stress of excitement caused by the event
Hearsay Exception - Business Records
1) record of events
2) kept in the regular course of business
3) made at or near the time of the matter described
4) made by a person with knowledge of the matter
5) regular practice of the business to make such a record
6) Opponent does not show record lacks trustworthiness
Hearsay Exception - Medical Diagnosis Treatment
1) statement made for and reasonably pertinent to medical diagnosis or treatment
2) describes medical history or symptoms
Hearsay Exception - Statements of Mental, Emotional, Physical Condition
Declarant’s statement about then-existing state of mind, emotional, sensory, physical condition
Statements of memory or belief no admissible
Hearsay Exception - Dying Declaration
Civil or Criminal Homicide Cases
1) declarant unavailable
2) statement made under a sense of impending death
3) statement about cause/circumstances of death
Declarant Unavailable
A) privilege B) refuses to testify C) Witness does not remember D) death or illness E) beyond rich of court
Hearsay Exception - Statement Against Interest
1) Statement against the declarant’s penal, property, pecuniary interest when made
2) declarant has firsthand knowledge
3) person in declarant’s position would have made the statement only if the person believed it to be true
4) declarant is unavailable
Criminal case - supported by corroborating circumstances
Hearsay Exception - Public Records
Government or public records
A) record describing policies and practices
B) observations made in accordance with duties by law
C) Factual findings from authorized investigation (civil or against government in criminal)
[inadmissible if opponent shows a lack of trustworthiness]
Hearsay Exception - Past Recollection Recorded
1) witness has personal knowledge at the time of events
2) writing was made or adopted by the witness
3) writing made while events still fresh
4) writing is accurate
5) witness can no longer remember the event
Record may be read into evidence [only offered as evidence by adverse party]
6th Amendment Confrontation Clause
Applied to states via 14th amendment
criminal defendant has right to confront witnesses
Hearsay Exception violates 6th Amendment (except- dying declarations, wrongdoing by the defendant) when
1) statement is testimonial
2) declarant is unavailable for cross examination
3) defendant had no opportunity for cross examination
6th Amendment Testimonial Statements
A) to a grand jury
B) to the police when primary purpose is to collect testimony to be used later at trial [not statements to help an ongoing emergency response]
Spousal Immunity
1) Witness-spouse holds privilege
2) in a valid marriage [not after the marriage]
Does not apply in civil cases
Confidential Marital Communications
Applies in Civil and Criminal
1) Communication made during the course of a valid marriage
2) communication intended to be confidential
Either spouse may assert the privilege
Survives the marriage
Communication disclosed to 3rd party destroys the privilege
Physician-Patient Privilege
1) confidential patient communications
2) for the purpose of medical diagnosis or treatment
Patient holds the privilege [only patient can invoke]
Sovereign Immunity
11th Amendment - prohibition on suing state or state agency (not local governments) unless
A) state explicitly waives
B) Federal 14th Amendment claim
C) injunctive relief against a state official
D) money damages from a state official
Standing
1) personally suffered injury in fact (concrete and particularized)
2) injury was caused by defendant
3) injury is redressable
Third Party Standing
A) Close Relationship
B) Difficult/unlikely for the 3rd party to assert their rights
C) 3rd party is organization
Organization Standing
1) Issue germane to Organization’s purpose
2) Members would have standing
3) members participation no necessary
Ripeness: Pre-enforcement review of statute
1) Hardship of the parties
2) fitness of the record
Mootness Exceptions
A) Wrong is capable of being Repeated and Escaping Review
B) Defendant voluntarily stops and can resume anytime
C) Class action with one member having ongoing injury
