Barbri Mnemonics Flashcards
Lawyer’s duty owed to clients?
“Clients Love Fierce Counsel”:
(1) Confidentiality;
(2) Loyalty;
(3) Financial Responsibility; and
(4) Competency
(and other reasonable things)
Lawyer’s duty owed to non-clients?
“Courts Feel Differently”:
(1) Candor;
(2) Fairness; and
(3) Dignity and decorum
(and other reasonable things)
Requirement for business transactions with a client and pecuniary interests adverse to client?
“First Discuss Over Coffee”:
(1) Fairness;
(2) Disclosure;
(3) advice to get Outside lawyer; and
(4) Consent.
Conflict of interest
Lawyer may not accept or continue a representation of clien tif
(1) representation is directly adverse to another C or (2) there is a significant risk that representation of C will be materially limited by L’s responsibilities to another C or former C, or by personal interest
CA: or (3) where L has legal, business, financial, professional or personal relationship with a party or witness in the same matter.
ABA requires written consent, CA requires INFORMED written consent.
Lawyer competence
ABA: Lawyer must have knowledge, skill, thoroughness and preparation reasonably necessary to represent client
CA: Lawyer may not intentionally, recklessly, with gross negligence or repeatedly fail to perform legal services with competence.
Lawyer fees factors
ABA: reasonable. “TENT FLAW”
Time limitations
Experience
Nature and length of relationship with client
Time and labor
Fee customarily charged
Likeliehood that acceptance will preclude other employment
Amount involved
Whether it is fixed or contingent
CA: not unconscionable or illegal. “FDSAC” (“Furry Dogs Satisfy Anxious Clients”)
Fraud
Disclosure failure
Sophistication of L/C
Amount
Consent (informed)
CA requires L to submit to arbitration for fee disputes, ABA only encourages it.
Elements required for a Permanent Injunction
“I’m Feeling Bold and Determined”
(1) Inadequate legal remedy;
(2) Feasibility of enforcement;
(3) Balance of hardships; and
(4) no Defenses.
Contract Rescission Elements
“Good Dog”
(1) Grounds for rescission (all relate to K formation: mutual mistake, unilateral mistake, fraud, misrepresentation); and
(2) Defenses to Rescission
- Valid D’s: Unclean hands, laches
- Invalid D’s: Negligence of P is not a D to rescission
Contract Reformation Elements
“Very Good Dog”
(1) Valid K;
(2) Grounds for reformation:
- Mutual mistake, unilateral mistake, misrepresentation
(3) Defenses to Rescission
- Valid D’s: Unclean hands, laches
- Invalid D’s: Negligence of P, SOF, PER
Specific Performance of a Contract
“Chocolate Cheesecake Is My Favorite Dessert”
(1) Contract
(2) Conditions satisfied
(3) Inadequate legal remedy
(4) Mutuality of Performance
(5) Feasibility of enforcement
(6) Defenses not applicable
Class Action Requirements
Federal:
“CAN’T”
You CAN’T sue alone in a class action.
Commonality
Adequate and fair representation
Numerosity
Typicality
Type of case:
1) Prejudice
2) Injunction/declaratory judgment
3) Common question predominates
CA:
(1) Ascertainable class and (2) well defined community of interest among class members
Class Action Fairness Act
Federal courts have jdx over class actions if:
(1) at least 100 members;
(2) any class member (not just the rep) is of diverse citizenship from any defendant; and
(3) the aggregated claims of the class exceed $5M.
Justiciable case or controversy
“RAMPSE”
Ripeness
Abstention
Mootness
Political Question
Standing
Eleventh Amendment
Standing Considerations
(1) injury;
(2) causation; and
(3) redressability.
Associational or organization standing requirements
(1) Individual members have standing
(2) Interests germane to org’s purpose; and
(3) Individual members’ participation in the lawsuit not required.
Congressional powers
1) Commerce
2) Taxing
3) Delegation
4) Property
5) Speech and debate
6) Impeachment
7) Appropriations
Privileges and Immunities Clause
Art. IV prevents a state or city from intentionally discriminating against non-citizens regarding rights fundamental to national unity. Corporations not considered citizens under this rule. Test is rigorous scrutiny (noncitizens are a peculiar source of evil and the discrimination is substantially related to this evenly with no less discriminatory means available).
Dormant commerce clause
State may not regulate interstate commerce in a way that is discriminatory or unduly burdensome.
If state law facially discriminates against out-of-state actors, it is invalid unless it serves (1) important non-economic state interest and (2) no reasonable non-discriminatory alternatives.
If a state law is facially neutral and merely incidentally burdens interstate commerce, permitted if rationally related to legitimate government interest and burden on ISC outweighed by benefits to state.
Standards of Review
(1) Strict Scrutiny
(2) Intermediate Scrutiny
(3) Rational Basis
Strict Scrutiny
Government must prove its action is necessary to achieve a compelling governmental interest. Must be least restrictive means and narrowly tailored.
Intermediate Scrutiny
Government must prove its action is substantially related to an important governmental interest.
Rational Basis
Plaintiff must prove classification is not rationally related to any legitimate governmental interest.
Procedural Due Process
Protects persons against intentional deprivation of life, liberty or property without due process of the law.
Mathews Balancing Test
If “entitlement” is at stake:
(1) Importance of private interest;
(2) Importance of state interests and the burdens on the government that would arise from the additional safeguards; and
(3) Risk of error under current procedures
Substantive Due Process
Government may not infringe on fundamental rights.
Strict Scrutiny:
- Privacy (MOPPS: marriage, obscenity, parental, procreation, sexual relations)
- Medical procedures for Death
- Travel
- Vote
- Free association (1st Amendment)
Rational Basis:
- Sexual orientation
Abortion used to be Privacy, but now states can regulate.
Takings Clause
Gov’t can’t take private private for public use without just compensation.
(1) Actual/physical taking
(2) Regulatory taking
Equal Protection Clause
Government may not deny people equal protection under the law. Applicable to states via the 14th Amendment and to federal government via the 5th Amendment for gross discrimination.
(1) Strict scrutiny:
- (a) Suspect classifications ( race, national origin, state alienage)
- (b) Voting
- (c) Domestic travel
- (d) First amendment rights
- (e) Most fundamental substantive due process rights
(2) Intermediate security:
- (a) Quasi-suspect classes (Gender, Illegitimacy)
(3) Rational basis review:
- Non-suspect classes (age, alienate (fed), disability, sexual orientation, social
- economic, non-fundamental rights
Freedom of religion
(1) Free Exercise Clause: bars laws that prohibit or burden free exercise of religion unless compelling gov’t interest
(2) Establishment Clause: prohibits laws establishing a religion.
Freedom of speech
First Amendment and applied to states through 14th Amendment, protects free speech.
Two classes:
- (1) content based; or
- (2) content neutral.
Content-based speech regulations
Forbid the communicative impact (i.e., the subject) of expression.
Subject to strict scrutiny. Exceptions:
(1) Obscenity (LAPS: lacks serious literary, artistic, political or scientific value);
(2) Misrepresentation and defamation;
(3) Imminent lawless action; and
(4) Fighting words.
Viewpoint speech regulations
Restricts speech based on the particular ideology or perspective.
(E.g., law banning all political speech is content-based, while a law banning only Communist speech is viewpoint-based.)
Content-Neutral Speech regulations
Aimed at something other than the communicative impact of the expression.
Intermediate scrutiny and must leave open alternative channels of communication.
Time, place, manner regulation of speech
Regulation of (1) public forums and (2) designated public forums must be (a) content neutral (both subject-matter and viewpoint), (b) serve an important gov’t interest, (c) be narrowly tailored and (d) leave open alternative channels.
Regulation of (3) limited public forums and (4) non-public forums must (a) be viewpoint neutral, (b) serve a legitimate gov’t interest and (c) be reasonably related to that interest.
Commercial speech
Gov’t may restrict commercial speech (advertising) only if:
(1) Substantial gov’t interest;
(2) Directly advances that Interest
(3) Narrowly tailored.
Limitations on free speech regulations
(1) Vagueness
(2) Overbreadth
(3) Unfettered
(4) Prior restraint
In person personal jurisdiction requirements
Traditionally based on where D is domiciled, presence in the state and consent. If no traditional basis, then see if long arm statute applies which gives court personal jdx. Some states, like California, give courts power over any person whom state can constitutionally exercise jdx. To be constitutional, factors are 1) contacts, 2) relatedness and 3) fairness. Don’t want to “offend traditional notions of fair play and justice”.
(1) Minimum Contacts
- (a) purposeful availment; and
- (b) foreseeability
(2) Relatedness
- Specific jdx (claim relates to D’s contacts) or
- General jdx (D at home in jdx)
(3) Fairness (only needed for specific jdx)
- (a) convenience;
- (b) state’s interest; and
- (c) other factors (e.g., P’s interest, judicial system’s interest, shared interest of states).
Subject matter jurisdiction
(1) Federal questions (i.e., is P enforcing a federal right) or
(2) Diversity
- All Ps in different state than all Ds; and
- EXCEEDS $75,000
Federal: Constitution, treaties, federal law.
State courts can’t hear certain federal cases (patents, bankruptcy, some federal securities and antitrust claims).
Federal courts, even if diversity is met, won’t hear divorce, alimony, child custody or probate matters.
Supplemental jurisdiction
Form of federal SMJ to add claims to a case. Common nucleus of operative fact. Occurs when claim arises from same transaction of occurrence.
Step 1: Is there diversity or FQ over additional claim?
Step 2: If no diversity or FQ, check for SMJ.
In diversity cases, P’s generally cannot invoke SMJ (one exception is when there are multiple Ps and claim by one doesn’t meet the amount in controversy requirement).
Erie doctrine
In diversity case, federal courts apply state substantive law to non-federal causes of action, but federal procedure rules.
Step 1: Federal law on point that conflicts with state law? If so, apply based on Supremacy Clause.
Step 2: If no federal law on point, apply state law if issue to be decided is “substantive”:
(1) Conflict of law rules;
(2) Elements of a claim or defense;
(3) Statutes of limitation;
(4) Rules for tolling SoL; and
(5) Standard for granting new trial because jury’s damages award were excessive or inadequate.
Step 3: if no federal law and not one of the above, federal judge must determine if an issue is “substantive”. Test (no one knows how to weigh):
- (a) outcome determinative;
- (b) balance of interests; and
- (c) avoid forum shopping.
Civil procedure affirmative defenses D may initially raise (FRE)
Motion to Dismiss or Answer 12(b)
(1) Lack of SMJ
*(2) Lack of PJ
*(3) Improper venue
*(4) Insufficient process (defect in summons form)
*(5) Insufficient service of process
(6) Failure to State a Claim
(7) Failure to join an indispensable party.
*#2 to #5 must be be raised or lose.
Must respond within 21 days of service.
Civil procedure affirmative defenses D may initially raise or lose them (CA)
(1) Motion to quash to assert:
- (a) lack of PJ;
- (b) improper process; and/or
- (c) improper service of process at special appearance or WAIVED! (Must file within 30 days of service)
(2) General demurrers: Failure to state facts sufficient for a claim, lack of SMJ
(3) Special demurrers: Pleading is ambiguous, lack of legal capacity to sue, misjoinder of parties
Requirements from P’s complaint
(1) Basis of SMJ
(2) Claims
(3) Relief
FRE: Notice pleading. Must file within 21 days of service.
CA: Fact/code pleading (stating basis claim and relief in more detail than for FRE). Must file within 30 days of service.
Civil procedure: FRE v. California terminology
(1) Counterclaim (CA: Cross-complaint)
(2) Crossclaim (CA: Cross-complaint)
Impleader
Third-party claim where a defending party (usually D) brings in a new party
Intervention
Nonparty absentee brings oneself into the case
Of right or permissive.
Interpleader
Permits a person to require two or more adverse claimants to the stake to litigate among themselves to determine which if any has the valid claim to it. (E.g., insurance company).
Claim Preclusion
Res judicata.
Prevents relitigation of any part of a cause of action that had been adjudicated on its merits or could have been raised that arises from the same transaction of occurrence between same parties/PRIVIES.
CA: “Primary rights” jurisdiction (i.e., separate causes of action for reach right not precluded). Also requires appeals to have concluded.
Issue Preclusion
Collateral Estoppel
Precludes a party from attempting to retry an issue if there has been (1) a valid and final judgment on the merits, (2) the issue was identical, (3) the issue was litigated, determined and essential in the prior action and (4) the party against whom enforcement is being sought against had a full and fair opportunity to litigate the issue.
Defensive non-mutual, offensive non-mutual
CA required appeals to have concluded.
Remedies Q order
Legal
Restitution
Equitable
Adverse Possession
“COAH”
Continuous
Open and notorious
Actual
Hostile
Joint tenancy
“T-TIP”
Four unities:
Time
Title
Interest
Possession
Severance of a Joint Tenancy
“SPAM”: Sale, Partition And Mortgage
1) Severance and Sale:
2) Severance and Partition:
3) Severance and Mortgage:
Tenant’s entitlement when implied warranty of habitability is breached
MRRR
(1) Move out and terminate lease
(2) Repair and deduct
(3) Reduce rent
(4) Remain and seek damages
Exceptions to caveat lesser (landlord’s obligations to tenant)
“CLAPS”
(1) Common areas
(2) Latent defects
(3) Assumption of repairs
(4) Public use rule
(5) Short-term lease of furnished dwelling
Creation of easement
PING
Prescription
Implication
Necessity
Grant
Termination of an easement
“END CRAMP”
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
Notice of an easement
“AIR”
Actual
Implied
Record
Requirement for real property covenant burden to run
WIT(H)N
Writing
Intent
Touch and concern
Horizontal and vertical privity
Notice
