Bar Rules Flashcards
Essential Terms for Real Estate Sales Contract
(1) the parties’ identities
(2) words indicating the parties’ intent to buy or sell
(3) an adequate description of the property
(4) the purchase price.
The Merger Doctrine
When the seller delivers the deed to the buyer, the sales contract merges into the deed. Consequently, any contractual guarantees about title disappear, and the buyer’s remedies for title defects are limited to the covenants of title contained in the deed.
Who bears the risk of loss during executory period? (Majority/Minority+?)
Majority Rule: the buyer (unless the contract states otherwise)
Minority Rule: the seller (“)
- (property is damaged = seller must convey property to buyer with a price reduction known as an abatement)
- (property is destroyed = buyer may cancel or rescind the contract and recover any deposit)
Two-funds rule of marshaling
if a senior creditor can foreclose on two properties of same debtor, and a junior creditor can foreclose on only one of the properties, then a court in equity may order senior creditor to proceed first against the property to which the junior creditor lacks access.
Identifying an equitable mortgage
1) whether the debtor keeps possession of the property
2) whether the debtor acutely needs money at the time
3) whether the transaction allows debtor to reclaim/repurchase property after making some payment
4) relationship between amounts paid to and repaid by debtor
5) whether debtor sells property for less than its fair market value
Adverse Possession Requirements
-Continuous
-Hostile under a claim of right
-Open and notorious
-For the Statutory Period
-Exclusive
Bona fide purchaser
one who purchases an interest in real property for value and without notice of a preexisting interest.
a wild deed
one that is outside a later buyer’s chain of title such that the later buyer cannot be expected to discover the deed through a reasonable records search. A wild deed does not provide record notice of the property interest reflected in that deed
estoppel by deed
applies if a grantor purports to convey property that he does not own to a grantee who lacks notice of this problem. If the grantor later acquires the property, then title immediately vests in the original grantee.
model penal code test for insanity
a person is not responsible for criminal conduct, if at the time of such conduct as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness (criminality) of his conduct or to conform his conduct to the requirements of law.
Necessity Defense
defendant must prove that her conduct was necessitated by a specific imminent threat of injury or harm AND that she had no viable, reasonable, and legal alternative to the action taken.
Common law murder
To be guilty of murder under the common law, a defendant must act with at least malice aforethought. Malice aforethought Malice describes several different mental states: (1) intent to kill; (2) intent to cause serious bodily injury; (3) reckless indifference to the value of human life; and (4) imputed mens rea, if a death results from the commission of a particular felony.
Larceny by false pretenses
A defendant must
1) knowingly make a false representation of material fact to a person,
2) with the intent to defraud, and
3) the false representation must cause the victim to pass title to something of value to the defendant
Entrapment
Entrapment is an affirmative defense. The defendant must show that law enforcement induced him to commit a crime he would not have otherwise committed. Merely providing an opportunity to commit a crime is not entrapment.
asportation
“carrying away” - larceny requirement - satisfied by even the smallest change in location
common law burglary
the breaking and entering of the dwelling of another, at night, with the intent to commit a felony therein.
common law assault
either attempted battery or a threatened battery. Attempted battery occurs if a defendant attempts but fails to cause an offensive or injurious physical contact. The second type is a threatened battery. Threatened battery occurs if the defendant puts the victim in reasonable apprehension of an imminent offensive or injurious physical contact, regardless of whether the defendant intends to cause the threatened contact.
MPC felony murder (difference from common law)
defendant can rebut the presumption that he acted recklessly and with extreme indifference to the value of human life
MPC conspiracy
requires overt act (except for first and second degree felonies) and is unilateral
Voluntary Manslaughter
Voluntary manslaughter is an intentional killing that occurs during an intense emotional state, sometimes called the heat of passion, that occurred due to adequate provocation. Classic examples of adequate provocation include mutual combat and catching a spouse in the act of adultery.
MPC Kidnapping
requires that the victim be moved for one of four specified purposes: (1) to hold for ransom or reward, or as a shield or hostage; (2) to facilitate commission of any felony or flight thereafter; (3) to inflict bodily injury on or to terrorize the victim or another; or (4) to interfere with the performance of any government or political function.
M’Naghten test for insanity
a defendant must show that he did not know the nature or quality of his criminal act or did not know that what he was doing was wrong
MPC Murder
a defendant is guilty of murder if he acts purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. Thus, even a defendant who does not intend to kill can be guilty of murder.
3 types of immunity
Testimonial immunity - means only that the defendant’s testimony cannot be used.
Derivative-use immunity - prevents the use of both testimony and any evidence derived from it.
Transactional immunity - means that the witness cannot be prosecuted at all for the crimes about which he has testified.
A court must grant at least derivative-use immunity to remove a witness’s right to invoke the Fifth Amendment.
when does jeopardy attach in a jury trial?
when the jury is sworn in
What is required for the witness’s prior statement to be deemed inconsistent with the witness’s current testimony?
The inconsistency between the witness’s prior statement and current testimony must have a reasonable bearing on the witness’s credibility.
The substantial-factor test
finds actual causation if
(1) multiple forces combine simultaneously to cause the victim’s harm;
(2) any one force would have sufficed, on its own, to cause the harm;
(3) it is impossible to tell which force caused which portion of the harm; and
(4) the actor’s negligence was a substantial factor in causing the harm.
The classic example is two independently originated fires, one natural and one man-made, converging to destroy one structure
The alternative-causes doctrine
applies if
(1) multiple actors are negligent,
(2) at least one actor’s negligence causes the harm, and
(3) it is impossible to tell which actor’s negligence caused the harm.
If these elements are satisfied, each actor must disprove that his or her negligence caused the injury, or else risk liability.
The concurrent-causes doctrine
finds actual causation if multiple forces, one being the actor’s negligence, combine to cause the victim’s harm, and no single force, by itself, could have caused the harm.
when can a final pretrial order be modified?
only to prevent manifest inustice
when can a party amend a pleading?
(1) within 21 days after serving the pleading, or (2) if the pleading is one to which a responsive pleading is required, 21 days after service of the responsive pleading or 21 days after service of certain Rule 12 motions, whichever is earlier.
Unilateral notice of dismissal vs motion to dismiss
a plaintiff may file a unilateral notice of dismissal if the defendant has not yet answered or moved for summary judgment.
Otherwise, a plaintiff may dismiss only by filing a motion to dismiss and obtaining a court order dismissing the case.
forum non conveniens
common-law doctrine that allows a federal court to stay or dismiss a case that is more appropriately heard outside the federal judicial system, whether in a foreign country or in a state court.
To decide a forum non conveniens motion, the court must weigh multiple factors, including the availability of witnesses and the other court system’s interest in the case.
when can a party intervene?
A party may intervene as a matter of right if it claims an interest in the subject of the case, and if disposing of the case may impair that party’s ability to protect its interests, unless the existing parties adequately represent the would-be intervenor’s interests.
A court may allow permissive intervention if the intervenor’s claim or defense shares a common question of law or fact with the existing case.
what happens to a claim that a court has supplemental jurisdiction over when all other claims are dismissed?
the court has discretion either to retain the supplemental claim or dismiss it.
requirements for a preliminary injunction or restraining order
1) The reason(s) for issuing the order;
2) The specific terms of the order; and
3) The act(s) enjoined, restrained, or required, providing a reasonable amount of detail.
what privilege rules apply in a federal diversity case?
Rule 501 of the Federal Rules of Evidence directs the federal courts to apply state privilege rules to any claim or defense governed by state law.
consent in fact
Consent in fact means that the victim is, in fact, willing for the actor’s conduct to occur. The victim will normally manifest consent in fact through words or actions. Yet silence or inaction can, in the right circumstances, manifest consent in fact. Further, consent is normally manifested to the actor herself, but it need not always be. Consent manifested to a third party can constitute valid consent in fact, if all the requirements are met. In that vein, there are three overarching requirements for consent in fact to be legally effective.
1) the consent must be informed, meaning that the victim knows all facts relevant to the decision whether to consent or not.
2) consent in fact must be voluntary. Voluntary means that the consent is the product of free choice. Accordingly, consent procured by duress or coercion is ineffective.
3) the victim must have legal capacity to consent. Incapacity, then, will defeat consent. Common grounds for incapacity include minority and mental deficiency.
when does the 6th amendment right to counsel attach?
when a criminal defendant is charged
right to a jury trial
A criminal defendant does not have a constitutional right to a jury trial under the Sixth Amendment unless the statutory maximum punishment exceeds six months of incarceration, regardless of the sentence imposed.
Batson Challenge
Under Batson, a justification for striking a member of the jury pool may be idiosyncratic, unpersuasive, or implausible, as long as it does not reflect discriminatory intent.
requirements for guilty plea
plea must be knowing, intelligent, and voluntary
defendant understands he is waiving his right to:
jury trial
confronting witnesses
remaining silent
defendant was informed of the punishment range and elements of the charged offense
The Compulsory Process Clause
guarantees a criminal defendant’s right to compel unwilling witnesses to testify at trial through the subpoena process.
Confrontation Clause
prohibits the prosecution from offering testimonial hearsay of a witness if the witness is unavailable to be called as a live witness at trial, unless the witness’s hearsay statement was made under oath and subject to cross-examination by the defendant under oath
Statements are testimonial if made for the primary purpose of aiding in a criminal investigation or securing a conviction
The United States Supreme Court has held that the death penalty cannot be imposed on any of the following types of defendants
(1) a defendant who committed the capital offense prior to the age of 18;
(2) a defendant who had a mental disability at the time of the offense, generally defined as an IQ under 70; and
(3) a defendant who currently lacks a rational understanding of why he is being executed
Maximum sentence for defendant under 18 under eighth amendment for:
-homicide
-nonhomicide
homicide - life imprisonment (not automatic) without parole AFTER a hearing at which the defendant is permitted to offer mitigating evidence
nonhomicide - life imprisonment with possibility of parole
Double Jeopardy - Two offenses are considered the same if
they have identical elements, or if one offense contains all the elements of the other offense, plus additional elements. If each offense contains an element that the other lacks, the offenses are considered separate offenses for double-jeopardy purposes.
automobile exception standard
probable cause (not reasonable suspicion)
drug dog sniff
not a search under 4a so don’t need probable cause, however, police cannot unreasonably delay the stop while waiting for the drug dog to arrive.
Miranda Doctrine
prior to any custodial interrogation, law enforcement must
(1) inform the suspect of his rights and
(2) make reasonably certain that the suspect has knowingly, intelligently, and voluntarily waived those rights
rule 403
evidence may be excluded if its probative value is substantially outweighed by the danger of unfairly prejudicing or misleading the jury, among other things
when a judge must conduct hearings on preliminary questions outside of the jury’s presence
1) if the hearing involves a confession’s admissibility
2) if a criminal defendant is a witness and requests the jury not hear the proceedings
3) if the interests of justice require it
when are leading questions permitted?
on cross-examination, and on direct examination if a party calls a hostile witness, an adverse party, or a witness identified with an adverse party
lay opinion is admissible if it is
1) rationally based on the witnesses perception
2) helpful in understanding the witness’s testimony
3) not based on any scientific, technical, or other specialized knowledge that would make it expert testimony
expert witness qualifications
- specialized knowledge will help the trier of fact understand evidence or determine fact
- based on sufficient facts or data
- based on reliable principles and methods
- expert reliably applied principles and methods
prior inconsistent statement - hearsay exception
Rule 801(d)(1) provides that a prior inconsistent statement is not hearsay if:
1) the witness testifies and is subject to cross-examination about the prior statement;
2) the prior statement is inconsistent with the witness’s present testimony; and
3) the prior statement was given under penalty of perjury at a trial, hearing, deposition, or other proceeding.
The business-records hearsay exception
a record of a regularly conducted activity is admissible despite being hearsay if
(1) the record was made at or near the time of the event based on someone’s knowledge;
(2) the record was kept in the course of a regularly conducted activity of a business, organization, or profession;
(3) the record was made as a regular practice of that activity;
(4) these conditions are established by a qualified witness or certificate; and
(5) the opponent fails to show that the record is untrustworthy.
recorded collections hearsay exception
The exception applies if the record
(1) is about a matter the witness once knew about but now cannot recall well enough to testify fully and accurately,
(2) was made or adopted by the witness when the matter was fresh in the witness’s memory, and
(3) accurately reflects the witness’s knowledge.
If the exception applies, then the witness may read the recorded recollection into evidence. However, the recorded recollection itself may be received into evidence as an exhibit only if it is offered by an adverse party.
statements against interest - hearsay
A statement against interest is a statement so contrary to an unavailable declarant’s penal, proprietary, or pecuniary interest that a reasonable person in the declarant’s position would not have made the statement if it were not true. If the statement is offered in a criminal case as one that tends to expose the declarant to criminal liability, Rule 804 also requires that a statement against interest be supported by corroborating circumstances that clearly indicate the statement’s trustworthiness.
when is a witness unavailable for purposes of FRE 804?
if the declarant
(1) is exempted from testifying due to a privilege,
(2) continuously refuses to testify despite a court order to do so,
(3) testifies to a lack of memory about the subject matter,
(4) is dead or has a long-term physical or mental illness, or
(5) is absent and cannot be located via subpoena or some other reasonable means despite a diligent search.
primary purpose test for testimonial statements
a statement is testimonial if the primary purpose of the statement was to gather evidence against the defendant or to create a substitute for trial testimony
FRE 807 - residual exception for hearsay
a statement must
(1) have equivalent circumstantial guarantees of trustworthiness as statements permitted by the Rule 803 and 804 exceptions;
(2) be offered as evidence of a material fact;
(3) be more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) serve the general purposes of the evidentiary rules and the interests of justice by its admission.
Additionally, if a statement satisfies Rule 807’s requirements, it may be admitted provided the proponent gives an adverse party reasonable notice of its intent to admit the statement.
when is evidence relevant?
Evidence is relevant if it has “any tendency to make a fact more or less probable than it would be without the evidence.”
standard for witness competency
that the witness is minimally capable of observing, recalling, and communicating events and understands his obligation to testify truthfully.
foundation
A party introducing evidence must first lay a foundation for that evidence. The foundation includes any preliminary facts needed to establish that a particular piece of evidence is what the party says it is (i.e., that the evidence is authentic) and relevant to be admitted.
evidence of insurance policy
only to show ownership, NOT to show negligence or ability to pay a civil judgment
contracts question: first point of analysis?
UCC or Common Law? (i.e. is the contract for a sale of goods?)
exception to the preexisting duty rule
a promise modifying a duty under a contract not fully performed on either side is binding even if not supported by consideration if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made
also preexisting duty rule doesn’t apply to UCC if modification is made in good faith
duress (contracts)
A contract is voidable on the ground of economic duress by threat when it is established that a party’s manifestation of assent is induced by an improper threat that leaves the party no reasonable alternative.
statute of frauds (UCC)
a contract for the sale of goods for a price of $500 or more is not enforceable against a party unless there is a writing sufficient to indicate that a contract has been made that is signed by that party or an exception applies.
option contracts
revocation
Promissory Estoppel
1) the promisor, when making the promise, should have reasonably expected that the promisee would change position in reliance on the promise
2) the promisee actually changed position in reliance on the promise
3) the change in position must have been to the promissee’s detriment
4) injustice can be avoided only by enforcing the promise
Material Benefit Rule
Although a benefit given in the past generally does not provide consideration, the
material benefit rule acts as an exception. If a party makes a promise after receiving a
significant benefit, then the court may enforce the promise if necessary to prevent
injustice.
may a party prove a witness’s character with specific instances of conduct during direct examination?
no. only reputation testimony in the form of an opinion.
Evidence of prior bad acts may be admissible for what purposes?
to show
POMPKILA
Preparation, Opportunity, Motive, Plan, Knowledge, Identity, Lack of accident, Absence of mistake
subsequent remedial measures
NOT admissible for:
to prove negligence, culpable conduct, product design defect, or a need for a warning or instruction
Admissible for:
other purposes, including proving ownership, control, or the feasibility of precautionary measures if these issues are in dispute.
exception to the collateral evidence rule
extrinsic evidence of a witness’s improper bias or interest is not subject to the collateral-evidence rule. Unlike evidence of prior inconsistent statements, extrinsic evidence that a witness has an improper bias or interest is never collateral. Parties may question a witness about the witness’s alleged bias or interest as well as prove the existence of that bias or interest by introducing extrinsic evidence.
standard for restricting commercial speech
law must be narrowly tailored to serve a substantial government interest
can a residing judge testify as a witness in a trial over which he is presiding?
no
Evidence of insurance
not admissible to prove a person acted negligently or wrongfully, but is admissible to show motive, ownership, and other purposes.
what happens when goods identified at the time the contract was made are totally destroyed before the risk of their loss has passed to the buyer and without the fault of either party?
the contract is avoided and each party is relieved of its respective obligation to perform
Doctrine of equitable conversion
if the contract is silent regarding the risk of loss, that risk goes to the party with the equitable title. Equitable conversion occurs when the contract is capable of specific performance.
equitable vs statutory right of redemption
equitable arises before foreclosure, statutory arises after
foundation for lay witness testimony
it must be shown that the witness has personal knowledge of the matter through firsthand perception or rational opinions based on personal observation or experience.
standard for authentication
To be admissible, evidence must be authenticated by making a prima facie showing of genuineness, leaving the final determination of authenticity and probative value to the jury.
federal discovery limits
In federal litigation, a party may serve an unlimited number of requests for production on both parties and nonparties but is limited to 10 depositions and cannot serve interrogatories on nonparties without leave from the court.
withdrawal from accomplice liability requires
party must undo or nullify any assistance provided before the principal commits the crime
what can a negligence plaintiff recover?
A negligence plaintiff may recover to the full extent of physical harm suffered, including medical expenses, emotional harm traceable to physical harm, and economic harm traceable to physical harm.
burden of proof for prosecutor to show that an in-court identification is not tainted by a prior identification
clear and convincing
generally, standard for when a party objects to the admissibility of evidence
preponderance of the evidence
is a bond hearing a critical stage for purposes of the sixth amendment?
No
what does the exclusionary rule NOT apply to?
The exclusionary rule prevents evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments from being introduced at trial to prove a defendant’s guilt but allows such evidence to be used in grand jury proceedings, parole-revocation proceedings, sentencing hearings, and federal habeas proceedings.
part performance exception to statute of frauds
The part-performance exception to the statute of frauds will allow enforcement of a verbal sales agreement if one party, usually the buyer, has taken certain steps that can only be explained by the existence of a contract. The courts generally ask whether the buyer has taken possession of the property, paid some or all of the purchase price, or made substantial improvements to the property. Most courts will find part performance if the buyer has taken two of these three actions, though courts differ as to which two.
when an appellate court may overturn a trial court’s findings of facts
when they are clearly erroneous
when does a defamation claimant have to prove a claim’s falsity?
when the statement implicates a matter of public concern
aggravated assault
(1) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life, or (2) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.
firefighter rule
generally prevents professional rescuers from recovering for injuries related to the negligence that required their presence, with an exception in some jurisdictions if the actor’s conduct was intentional or reckless.
Rule 615 may not be used to exclude from the courtroom:
(1) parties, (2) a party’s designated representative if the party is not a natural person, (3) a person whose presence is essential to the case, or (4) a person authorized by statute to be present.
pure comparative fault
In a pure-comparative-fault jurisdiction, the fact finder assigns a percentage of fault to each party, including the plaintiff, and the plaintiff’s recovery is reduced by the percentage of fault assigned to the plaintiff.
Uniform Probate Code - Ademption by extinction
Ademption by extinction occurs when a testator sells or transfers specifically devised property before death, but under the Uniform Probate Code, if the testator dies before closing on a contract to sell real property, the devisee is entitled to any remaining sale proceeds.
congress - conditional spending
valid if the conditions are clearly stated, reasonably related to a federal interest, do not require unconstitutional actions, and are not unduly coercive.
standing for public and private nuisance
Standing to sue for public nuisance can exist if the plaintiff suffered some particularized injury, distinct from whatever harm befalls the general public at large resulting from the alleged nuisance. Standing to sue for private nuisance requires merely that the plaintiff have some possessory interest in real property affected by the alleged nuisance.
former testimony of an unavailable declarant
Former testimony of an unavailable declarant is admissible if (1) the former testimony was given at a trial, hearing, or lawful deposition and (2) it is offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by examination.
Merchant
someone who deals in goods of the kind at issue or holds an occupation such that he would have knowledge or skills particular to the goods involved in the transaction
Conversion
Conversion arises if the actor (1) intentionally exercises control over (2) the personal property (chattel) of another and thus (3) seriously interferes with the other’s possessory rights in the chattel. The interference must be so severe that it is justifiable to require the actor to pay the chattel’s full value, determined immediately before the conversion.
strict products liability
Strict products liability is imposed if (1) the actor was a commercial supplier of the defective product (i.e., the actor was in the business of selling the product), (2) the product had a defect when it left the actor’s control, (3) there was no significant change in the product’s condition between the time it left the actor’s control and the time it caused the injury, and (4) the defect actually and proximately caused the injury.
forum-defendant rule
prevents a case from being removed to federal court if a defendant is a citizen of the state where the case was filed.
“lifetime” employment agreement - statute of frauds
A “lifetime” employment agreement is not subject to the statute of frauds, because it could be performed within a year if the employee dies within that time period.
political question doctrine + exception
The doctrine that courts should abstain from deciding cases involving questions that are too complex for judicial resolution or that involve value determinations constitutionally delegated to a different branch of government.
exception - interbranch disputes involving foreign affairs are not subject to the political question doctrine when they concern the validity of a federal statute.
commerce clause - when aggregate effects test applies
only to regulations of economic activity
example: would not apply to wild growing weed that can be used as a drug but that there is no commercial market for
Conversion
occurs when an actor intentionally interacts with an item that is the personal property of another so as to permanently deprive the other of possession. This is true regardless of whether the actor knows that the item is in another’s possession.
requirements for forfeiting a hearsay or confrontation objection
a defendant must have engaged in wrongful conduct for the purpose of preventing the declarant from testifying.
can congress play any role in the removal of executive officers?
No
is a stockholder who is a lay witness allowed to testify why he thinks that a stock price dropped?
no, because that would be a lay witness seeking to give testimony on causation that requires the specialized knowledge of an expert witness
standard to permit relation back of amendments adding a party
failure to name the party in the original complaint must have been due to a mistake of identity
standard to avoid a contract due to mistake
Where a mistake is mutual, the loss falls on the party who bore the risk of mistake.
A person cannot avoid a contract for mistake where that person bears the risk of mistake. Here, the heir bore the risk because she was aware that she had only limited knowledge with respect to the facts but treated her limited knowledge as sufficient.
standard for plain error appeal
appeal can only be successful if the instruction affected the defendant’s substantial rights
standard for when defendant fails to object to jury instructions but then later appeals
the defendant’s appeal can only be successful if the instruction affected the defendant’s substantial rights, which is the standard for plain error.
standard for authentication
The production of evidence “sufficient to support a finding” that the evidence is what the proponent claims it to be
when can a state tax the federal government
A state tax is valid if it is nondiscriminatory and does not apply directly to the federal government
i.e. a state taxing a contractor that the federal government hires
is a private city water supplier a government actor?
No. The fact that the company supplies a very important good to the public is not sufficient to make it a state actor, nor is the non-exclusive franchise from the city
Private entities performing a public function are state actors only if the function is an exclusively governmental service or one that involves inherently governmental powers such as incarceration. Supplying water does not satisfy either of these requirements.
state of mind exception to hearsay
admits only statements of a declarant’s own then-existing physical or mental state
It does not admit statements about past facts that the declarant remembers or believes.
restrictive covenants and marketable title
A seller is required to convey a marketable title to a buyer in the absence of a contrary provision in the contract. A restrictive covenant makes title unmarketable unless the covenant is excepted in the contract. Here there is no exception in the contract.
compulsory counterclaim
vs
permissive counterclaim
A contract claim is a compulsory counterclaim under Federal Rule of Civil Procedure 13(a), if it arises out of the same transaction or occurrence that is the subject matter of the original claim, and thus not only may the counterclaimant assert the contract claim, but that claim must be included in the broker’s answer or it will be forfeited
permissive counterclaims are unrelated to the original claim
when is someone who hires an independent contractor liable for their negligence?
A person who hires an independent contractor ordinarily is not liable for injury to a third party caused by the contractor’s negligence. However, there is an exception to this rule when the person directly influences the manner in which the contractor performs the work so as to contribute to the creation of the danger that causes the third party’s injury.
OR
the independent contractor is hired to perform inherently dangerous activities [look up last graded essay]
punitive damages may be awarded when
may be awarded if tortious conduct involves malice, willfulness, wantonness, outrage, and indignity.
time of the essence
If a contract indicates that time is of the essence, then strict compliance with the timing of performance is required to avoid a breach of the contract.
non-unanimous juries
Federal Rule of Civil Procedure 48 permits a non-unanimous verdict if the parties so stipulate
abnormally dangerous activity
Conduct that is so inherently hazardous that it cannot be made less risky by the exercise of due care. Someone who engages in an abnormally dangerous activity may be held strictly liable for injuries that foreseeably result from the activity.
when are goods identified to a contract?
when the seller ships, marks, or otherwise designates them as goods to which the contract refers
how can a crossclaim be improper
if it asserts a defense (attempts to shift the blame) rather than a claim for relief
what determines the order of proof/evidence?
the trial judge has broad discretion
what has to be shown to modify a scheduling order?
in order to have a scheduling order modified, the moving party must show “good cause.” This requires a showing that the party acted diligently to try to meet the original deadline.
Miranda and probation
the “in custody” requirement is not met simply because a probationer or parolee is under a general obligation to appear and answer questions truthfully. Instead, a person is “in custody” only when under “formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.”
historical site-location cell phone data - fourth amendment
a warrant is required to collect extensive historical site-location data from a cell-phone provider.
an exception to the third party doctrine
common law contract modification requirement + exception
a modification is binding “if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made.”
even if there is no consideration
can the deadline for a renewed JMOL be extended?
no
principle of reasonable expectations
posits that parties should not be bound by terms that they would not expect to find in a contract unless those terms were called to their attention
can an unspecified easement’s location become fixed?
yes, by use. Example question was 14 years
can congress add to the supreme court’s original jurisdiction?
No.
NIED - requirement
must be tied to a physical injury
vindictive-prosecution doctrine
prevents a prosecutor from increasing the amount or severity of the charges against a defendant after the defendant exercises a constitutional or statutory right
what happens when a jury finds someone guilty of a lesser offense but then the def appeals and there is another trial?
defendant cannot be charged with original offense, only the lesser charge, because a jury effectively acquitted him of the original offense
UPC intestate succession - spouse with two marital kids but spouse has child from another person
spouse gets first 225k + half of the remaining
when does a surviving spouse take the entire intestate estate?
if three requirements are met: (1) the decedent and the surviving spouse have the same surviving descendants, (2) the decedent has surviving descendants by no one except the surviving spouse, and (3) the surviving spouse has surviving descendants by no one except the decedent.
UPC intestate succession - decedent has surviving descendants by someone other than surviving spouse
surviving spouse takes the first $150k plus one half of the remaining balance. the other half is distributed to the decedent’s descendants.
specific performance requirements
(1) the terms of the contract are sufficiently definite,
(2) the order will not be disproportionately burdensome for the court to enforce, and
(3) money damages will be inadequate.
false imprisonment
occurs if an actor
(1) intentionally
(2) confines a victim
(3) to a bounded area, and
(4) the victim is either aware of the confinement or harmed by it.
solicitation
if a person
(1) invites, requests, commands, encourages, or counsels
(2) another person
(3) to commit a felony or a misdemeanor involving a breach of the peace,
(4) with the specific intent that the person solicited perform the crime
when can an appellate court set aside a trial judges findings of fact?
only when the findings are clearly erroneous
does a party have to object to a trial judges findings of fact in order to challenge them on appeal?
no
perfect tender rule - installment contract exception
UCC Article 2 adopts the perfect tender rule, but that rule is inapplicable to assess the conformance of a seller’s performance under an installment contract.
a buyer may reject any installment that is nonconforming if the nonconformity substantially impairs the value of that installment and it cannot be cured.
when is an out of court identification improper?
When can in-court testimony of the out of court identification be admitted?
when it is unnecessarily suggestive
(example = involving only one photograph and a leading statement by a detective)
When the identification is shown to be reliable under a multi-factor inquiry
purchaser assumes mortgage from man, purchaser doesn’t make payments so man does to avoid foreclosure, can man sue purchaser for payment amount?
yes, under the laws of suretyship
to prevail on a nuisance claim
the plaintiff must show that the defendant’s activity has substantially and unreasonably interfered with the plaintiff’s use and enjoyment of his property.
marital privilege requirement
communication must be confidential
statement against interest hearsay exception - definition + REQUIREMENT + difference between civil and criminal
state could have subjected him to civil or criminal liability
witness must be unavailable
criminal - must provide corroborating circumstances that would clearly indicate trustworthiness of the statement
civil - don’t have to do this
does the accreditation, regulation, and partial funding of a university by the state render the university’s conduct state action?
no
relief from judgment based on newly discovered evidence
Newly discovered evidence is evidence that previously existed but could not have been discovered with reasonable diligence.
relief from judgment for fraud
a court may relieve a party from a final judgment on the ground of fraud, misrepresentation, or misconduct by an opposing party
when does the US supreme court not have jurisdiction over a state supreme court ruling?
when that decision is supported by state law grounds that are (1) independent of federal law and (2) adequate to sustain the result in the case.
(i.e. even if the US supreme court were to reverse the federal issue, the result of the case would not change)
does the privilege of self-incrimination apply in both civil and criminal cases?
yes
what is an additional term to a contract and when is it be considered a term of the contract?
an additional term, when the contract is silent to a term and an acknowledgment adds the term, is considered a proposal for addition to the contract.
an additional term becomes a term of the parties’ contract unless certain specified circumstances are present. One such circumstance is where an additional term materially alters the parties’ contract.
intended beneficiary vs incidental beneficiary
A test for determining whether a third-party beneficiary is an intended beneficiary with rights to enforce a contract, based on whether the circumstances indicate that the promisee intended to give the third-party beneficiary the benefit of the promised performance.
In order for a person to recover as a third-party beneficiary, the contract itself must indicate an intent to benefit that person directly.
when is intoxication a defense?
when it is involuntary
commercial speech and the first amendment
first amendment does not protect commercial speech that is false or misleading, regardless of whether the speaker knew that the speech was false or misleading
objection to jury instructions - when they must be raised and when you can still appeal even if you don’t initially object
must be raised at the time that the court first informs the party that it will or will not give the instruction
may only be reviewed on appeal if it constituted plain error (meaning it affected the defendant’s substantial rights)
is the right of parents to control their upbringing a fundamental right?
yes
defamation per se
Statements so harmful to a person’s reputation that damages are presumed.
includes accusations of criminal acts
entitled to presumed damages
public figures still require actual malice
how can congress overturn an action of an executive agency?
only by enacting a statute
inspecting a writing used to refresh an opposing party’s witnesses’ memory
if writing is used while the witness is testifying - adverse party has a right to inspect
if writing is used before the witness testified - party may inspect if “the court decides that justice requires it”
is a jury of less than six jurors permitted?
a verdict from less than six jurors is permissible only if both parties agree to it
HOWEVER
even in this case, a federal civil jury must begin with at least six jurors
does the defendant have the burden of proving an alibi?
no, because an alibi is not a traditional defense, but rather negates an essential element of the crime.
what is the significance of a second voluntary dismissal of the same claim?
it operates as an adjudication on the merits and therefore the plaintiff cannot refile the same claim
when is trade usage admissible to interpret or supplement an agreement?
when it can be construed as reasonably consistent with an agreements express language.
trade usage is consistent unless the usage completely negates specific express language.
accomplice liability requirements + does accomplice liability require that the principal also be prosecuted?
proof an accomplice aided a principal’s crime and proof the accomplice acted with a culpable mental state
and
no
does congress have the power to strip the supreme court of its appellate jurisdiction to hear particular types of cases?
yes, BUT congress may not expand or narrow the original jurisdiction (which generally includes cases involving states as parties and cases involving diplomats)
restitution
restores a party any benefit conferred to the other party
when will a court admit extrinsic evidence when analyzing a will?
when a term is ambiguous
when are wills generally construed? (i.e. at what time are terms of the will analyzed as if they were written?)
the time of the testator’s death
a child born after a will is signed
is entitled to a forced share of the estate if not provided for in the will
five fundamental rights
(1) rights to vote;
(2) access the ballot as a political candidate;
(3) travel to another state;
(4) marry, procreate, and live as a family unit;
(5) and access the courts to obtain justice
collateral-evidence rule
A party may use various methods to impeach a witness, including extrinsic evidence, but the collateral-evidence rule bars such evidence on collateral matters, except if impeaching for bias or interest, because bias is not considered a collateral matter.
can the same witness provide both lay and expert witness testimony, if qualified?
yes
when are liquidated damages enforceable
if the amount is reasonable in light of (1) the actual or anticipated loss resulting from the breach and (2) any difficulties in providing the amount of the loss.
when can voluntary intoxication serve as a defense?
by negating the required mental state for an offense. Robbery is generally defined as larceny committed with two additional elements: the property is taken (1) from the person or presence of another and (2) by force or intimidation. Larceny requires an intent to permanently deprive another party of property.
therefore, if the person drunkenly mistakes the property for his own, he fails to meet the required intent for larceny
hearsay exception for then-existing state of mind
includes motive, intent, or PLANS along with emotional sensory or physical conditions
condition must exist when the statement is made
hearsay exception - dying declaration - when available
ONLY available in a prosecution for homicide or in a civil case if the statement concerns the cause or circumstances of the declarant’s death
is FRE 403 a may or must?
MAY - the court is not required to exclude evidence
unilateral mistake requirement
mistake must not be about future events and the non-mistaken party must know of the mistake
exception to the rule that a party may ask a character witness about specific instances of the person’s conduct during cross-examination to test the witness’s knowledge and credibility
prior conduct of an extremely personal or private nature (such as an affair) may be outside the scope
statement by party opponent hearsay exception - includes what?
statements by coconspirator even if they are not a defendant in the case as long as the statement was made during and in furtherance of the conspiracy
two tests for insanity
model penal code - could not conform her conduct to the requirements of law even if they know it is wrong
m’naughten - must either not know right from wrong or not know the nature of their actions
when can officers with an arrest warrant forcibly enter into a home?
only when they reason to believe the subject is home.
can a joint tenancy interest be devised in a will?
no
what does delivery of a deed require other than physical delivery?
the grantor must intend for the deed to be effective
is the president obligated to spend funds in accordance with congressional directions?
yes
hearsay exception - prior identification
only if they are subject to cross examination and there is sufficient showing of personal knowledge
what law covers transfers of venue in federal court?
federal law
which also holds that when there is a mandatory forum selection clause, the action must be transferred to the indicated federal district unless there are compelling reasons to the contrary
can a state exclude legal aliens from jury duty?
yes, because a state my limit to US citizens functions that are an integral part of the process of self-government
laws based on alienage normally get strict scrutiny, but only rational basis scrutiny when it comes to self-government issues such as voting, running for office, or serving on a jury
NIED - zone of danger
must be under direct physical threat from the actor’s negligence
in a completely integrated agreement, what is extrinsic evidence still admissible for?
to explain the terms of the agreement OR previous course of dealings
does the court have to exclude a nonparty witness if a party moves to exclude them before they testify so that cannot hear other witness testimony?
yes
is a copy of a document a violation of the best evidence rule?
no, generally a copy of a document is admissible unless a genuine question is raised about the authenticity of the original or the circumstances make it unfair to admit the copy
when removing trade fixtures, does a commercial tenant have a duty to restore the premises or pay the cost of any restoration?
yes, if removing the trade fixtures causes any damage
is a wrongly terminated employee expected to mitigate damages by seeking comparable employment?
yes
expert testifying about mental state
criminal case - cannot testify about the required mental state for the crime
civil case - no rule about mental state
