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Bar Tips Document Flashcards

1
Q

relevancy standard for evidence

A

any tendency to make an essential element more or less likely

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2
Q

excluding otherwise relevant evidence categories

A

-liability insurance
-subsequent remedial measures
-settlements
-withdrawn guilty pleas
-offers to pay med expenses

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3
Q

excluding otherwise relevant evidence categories

A

-liability insurance
-subsequent remedial measures
-settlements
-withdrawn guilty pleas
-offers to pay med expenses

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4
Q

prior identification

A

admissible if testifying now and subject to cross

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5
Q

prior consistent statements

A

only allowed to rebut charge of lying or exaggerating AND the statement was made before the motive to lie/exaggerate arose

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6
Q

excited utterance

A

-requires personal knowledge
-under stress of event
-look for exclamation points

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7
Q

past recorded recollection

A

-Attempt to refresh must have failed
-Then witness can read words into evidence
-Writing must have been made or adopted by witness when it was fresh in their mind and it is accurate
-Writing itself is not admitted unless offered by opposing party
-Only testimony generally admitted

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8
Q

business record

A

-Created as routine practice
-Admitted by personal w knowledge and duty to record
-Made at or near time event happened
-Kept in course of ordinary business

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9
Q

when is someone unavailable

A

PRISM
-privilege
-refusal to testify
-incapacitation (mental/phys)
-Subpoena (failure to comply)
-memory (lack of)

uh death?

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10
Q

what hearsay exceptions require the person be unavailable

A

-dying declaration
-former testimony
-declaration against interest

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11
Q

former testimony exception

A

-Under oath
-Party against whom it is offered must have had the opportunity and similar motive to develop the testimony either on cross, direct, or redirect
-Must have been same parties in substantially similar proceeding

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12
Q

5 rules for character evidence in criminal case

A

-Pros cannot intro [case-in-chief] rep or op evidence of D’s bad character if purpose is propensity [NO PROPENSITY EVIDENCE BY PROSECUTION]
-D can intro evidence of RELEVANT good character trait for propensity purposes (didn’t commit crime) [If D does this, he is limited to REPUTATION OR OPINION only [no specific acts]]
-If D does prevent evidence of good character, then he opens the door & pros can REBUT. [Pros limited to REP or OPINION, no specific acts]
-Evidence of prior crimes or bad acts are never admissible to show PROPENSITY [But may be admissible to prove another point in the case [MIMIC; impeachment]]
-If D testifies, he automatically places his character for TRUTHFULNESS OR UNTRUTHFULNESS [So can then impeach]

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13
Q

3 rules for character evidence in a civil case

A

o Char evidence inadmissible unless directly in issue [no propensity evidence]
o Neg entrustment [trustee]
o Fraud [D]
o Child custody [parent]
o Defamation [p]
o If litigant has other purpose for intro of character evidence, that’s ok
o If a party testifies, they auto place char for truthfulness or untruthfulness in issue

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14
Q

ways to impeach someone

A

o Prior inconsistent statement
o Bias or motive to misrepresent
o Prior conviction
o Specific acts of misconduct bearing on truthfulness/untruthfulness
o Rep or opinion evidence of untruthfulness

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15
Q

when is an offer not revocable

A

 Paid-for option kx
 Foreseeable detrimental reliance
 Started performance under unilateral kx OR
 Merchant firm offer

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16
Q

offer termination

A

 Lapse of time: reasonable time
 Revocation: offeror retracts offer [direct or indirect]
 Rejection: counteroffer, conditional acceptance
 Death

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17
Q

unconscionability

A

o Unconscionability (unfair surprise, oppressive terms – tested at time of formation of kx)

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18
Q

SoF exceptions

A
  • Lease of year or less
  • Part performance of real estate kx
    o Payment, possession, improvement
    o Need 2 out of 3
  • Full performance
  • Goods already accepted or already paid for
  • Custom-made goods substantial beginning
  • Judicial admissions
  • Merchant confirmatory memo
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19
Q

parol evidence rule exceptions

A

-fix clerical errors
-explain ambiguous terms
-establish defense

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20
Q

Art 4 Privilege and Immunities Clause

A

Protects out of state residents from being discrim against esp relating to livelihood and civil liberties (important econ interests) – invalid unless substantial justification for law and no other available means. Doesn’t apply to corps. Could win on Art 4 or commerce clause here.

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21
Q

Public forum test

A

VALID if:
-content neutral
-narrowly tailored to serve important gov interest
-alt channels of comms left open

22
Q

Nonpub forum test:

A

VALID if:
-viewpoint neutral
-passes RB

23
Q

dormant cc

A

If Congress has not regulated, state can regulate local aspect of commerce if:
-does not discriminate
-does not unduly burden

24
Q

cc

A

-Congress has plenary power to regulate
-Can regulate channels, instrumentalities, and Econ activity where substantial effect in aggregate

25
Q

taxing and spending powers

A

taxing: must bear some reasonable relationship to revenue production or be within Congress’s regulatory power
spending: based on general welfare

26
Q

executive powers

A

Domestic authoirty
-appt high-level officers w senate approval
-pardon federal offenses
-veto bills
Power over external affairs
-can act militarily but not declare war
-represents US in foreign relations
-enter into treaties w/ 2/3 senate approval
-enter into exec agreement w foreign power

27
Q

leg delegation of power

A

o Leg power can be delegated to exec or judicial as long as intelligible/specific standards are set and the power is not uniquely confined to Congress.

28
Q

press and trials

A

o When keeping press out of trial, need to show there’s not a better way to handle the issue [less restrictive alternatives wouldn’t work]

29
Q

3d party beneficiary

A

where performance is owed to someone who is not part of the kx

intended or incidental

30
Q

when can a kx be modified or cancelled w/o the third-party beneficiary’s permission

A

prior to VESTING

when 3d party beneficiaries rights vest
-assents to kx
-detrimentally relies upon kx
-brings lawsuit to enforce kx

vesting does not occur merely bc they learned about kx

31
Q

assignment of rights

A

can’t make a valid assignment that would substantially change the obligor’s performance

32
Q

delegation of duties

A
  • When obligor transfers duty to perform
  • Generally, all duties may be delegated except those where the kx provides otherwise or the performance requires personal judgment or skill
33
Q

accord and satisfaction

A

o Agrmt where one party to an existing kx agrees to accept diff performance in lieu of the performance they were supposed to receive
o Ok as long as some alteration or it is a bona fide dispute

34
Q

basic remedy points

A

 Basic principle: place non-breaching party in same position as if the breach had not occurred
 Legal damages:
* Damages for nonperformance
o Give nonbreaching party the benefit of the bargain
o Calculate cost for cover
* Warranty damages
o Diff in value between goods as delivered and as promised

35
Q

lost volume seller

A
  • Seller who can obtain as many goods as can be sold
  • Kx price – wholesale price + cost of breach
  • COMPARE w sellers who have unique items or cannot get as many goods as can be sold
    o Damages = kx price – resale price
    o If resales it to someone else, no damages cus only 1 to sell
36
Q

quasi kx

A

o Plaintiff conferred benefit on D
o P had reasonable expectation of payment
o D knew or had reason to know of this expectation
o Used when no kx or isn’t enforceable

37
Q

tenancy at will

A

no real terms. continues until either party gives notice

38
Q

assignment v sublease privity

A

assignment
-privity of kx for assignee and landlord; no privity of estate for original tenant; privity of estate for assignee; both assignee and original tenant L to landlord
sublease
-original tenant keeps privity of estate and privity of kx w landlord; subtenant has neither

39
Q

how to create easement

A

 Express creation
 Creation by implication
* Prior use by common owner
* Necessity
 Prescription
* Like AP but don’t need exclusive use

40
Q

how to terminate an easement

A

Oral expression of intent to abandon an easement doesn’t terminate easement unless committed to writing or accompanied by action like abandonment.

END CRAMP

Estoppel - servant owner materially changes position in reasonable reliance on statement that easement will no longer be enforced
Necessity - as soon as necessity ends
Destruction - destruction of the servant land other than thru willful conduct of the servant owner
Condemnation - by eminent domain
Release - written release
Abandonment - must show by PHYSICAL ACTION an intent to never use again (like building something that blocks)
Merger - servient and dominant owner same person
Prescription - all but exclusive

41
Q

diff between license and easement

A

license is revocable

42
Q

real covenant v equitable servitude differences (remedy)

A

real covenant = legal damages
equitable servitude = injunctions

43
Q

equitable servitude elements

A

-intent (orig owners intended it to run w land)
-notice (3 types)
-touch and concern (does agreement relate to use of land)

44
Q

real covenant elements [when original Covenanter can enforce]

A

-intent
-notice
-touch and concern
-horizontal privity [at time covenant created, 2 covenanting parties shared some interest….grantor-grantee; mortgagee-mortgagor; landlord-tenant]
-vertical privity [successor received the entirety of the duration]

45
Q

when subsequent owners receive benefits of covenant

A

equitable servitude
-intent
-touch and concern

real covenant
-intent
-touch and concern
-vert privity

46
Q

what if buyer dies before closing? seller?

A

buyer
-passes as real prop
seller
-passes as personal prop

47
Q

when must title be perfected for real estate purchase

A

by closing but if time not of the essence, generally has about two months after closing to cure defects

48
Q

PMM priority

A

PMM reigns SUPREME. This is the mortgage taken out to buy the actual property. Given priority over other mortgages recorded earlier. But if PMM fails to RECORD, can be defeated.

49
Q

Shelter doctrine

A

protects non-BFPs if they receive from BFP

50
Q

race-notice jdx

A

subsequent BFP must record first (and have no notice)

51
Q

notice jdx

A

last BFP gets it if no notice

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