Critical Snippets Flashcards
When is evidence relevant? (2)
Evidence is relevant and generally admissible if (i) it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., it is probative), and (ii) the fact is of consequence in determining the action (i.e., it is material).
Logical: If it has a tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.
Legal: If probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
What is non-hearsay? (W-ICID / PO) (3/ 1)
W-ICId
O-PAE
Declarant-witness:
- Prior inconsistent statement
- Prior consistent statement for rehabilitation
- Prior identification
Party-opponent:
- Made or adopted by party (anything they say)
- Adoptive admission
- Made by agent, employee, coconspirator, or authorized person
What are the hearsay exceptions with an unavailable declarant? (DAFT C) (5)
DAFTC
- Former testimony
- Dying declaration
- Statement against interest
- Personal/family history
- Against party that wrongly caused declarant’s absence
What are the hearsay exceptions regardless of declarant availability? “Rec MedIUM Lt PrBrJ” (9)
REC MedIUM
LT PR BR J
- Present sense impression
- Excited Utterance
- Then-existing state of mind
- Statement made for medical diagnosis/treatment
- Recorded recollection (no longer able to testify)
- Business records
- Public records
- Learned treatises
- Judgment of previous conviction
What are the elements of common-law murder?
Unlawful killing of another human being with malice aforethought.
What is the deadline to file a motion for removal?
Must be filed within 30 days of receiving complaint
What is the hearsay approach for essays?
- Write the hearsay heading and rule
- Explain why the item could be hearsay - used for the truth of the matter asserted
- Look for non-assertive conduct - hearsay rule only applies to assertive conduct
- Look for non-hearsay uses - such as effect on listener or reader
- Look for double hearsay (hearsay within hearsay). If you see it, define the two levels and discuss both separately
- Discuss all relevant non-hearsay “exceptions”
- Discuss all relevant hearsay exceptions.
When is a valid contract formed?
Offer, Acceptance, Consideration
What are the grounds for a no-fault divorce?
Marriage irretrievably broken with no prospect of reconciliation (“irreconcilable differences”)
How is an offer accepted (unilateral or bilateral)
Unilateral: accepted by complete performance BUT starting performance makes the offer irrevocable for a reasonable amount of time.
Bilateral: either return promise (offeror sets terms) or starting performance.
What three conditions must be met for the defense of impracticability to apply?
(i) An unforeseeable event has occurred
(ii) Nonoccurrence of the event was a basic assumption on which the contract was made
(iii) The party seeking discharge is not at fault.
Under the UCC what three requirements must be met for an offer to buy or sell goods to be an irrevocable firm offer?
(i) The offeror is a merchant
(ii) There is an assurance the offer is to remain open
(iii) The assurance is contained in a signed writing from the offeror
What is past consideration and the material benefit rule?
Under CL, past consideration was typically not adequate consideration because it could not have been bargained for, nor done in reliance upon a promise.
Modern trend is toward enforcing such promises under material benefit rule: when a party performs an unrequested service for another party constituting a material benefit, performing party may enforce a promise of payment made by the other party, even though it involves past consideration under CL.
Under the UCC, if both parties are merchants, when is an additional term in the acceptance NOT automatically included in the contract?
(i) The term materially alters original contract
(ii) The offer expressly limits acceptance to the terms of the offer
(iii) The offeror has already objected to the additional terms, or objects within a reasonable time after notice was received.
How can a valid marriage be terminated?
Annulment, divorce, death
What are the grounds for a voidable marriage? (I FAIL) (5)
I FAIL (Impotence, Fraud, Age, Intoxication, Lackofintent)
- Age
- Impotence
- Intoxication
- Fraud, misrepresentation, duress, coercion, or force
- Lack of intent
What are the fault grounds for divorce? (AID, BIICH) (8)
AID, BIICH (Adultery, Indignity, Desertion; Bigamy, Institutionalization, Imprisonment, Cruelty, Habitualdrunkenness)
- Adultery
- Cruelty
- Desertion
- Habitual Drunkenness
- Bigamy
- Imprisonment
- Indignity
- Institutionalization
What factors are typically considered when awarding spousal maintenance? (CSTL FAM) (7)
CSTL FAM (Contributions, Standard of living, Time to find employment, Length of marriage, Finances, Age, Misconduct)
- Financial resource
- Standard of living
- Time for spouse to find employment or training
- Length of marriage
- Contributions to marriage
- Age and health of parties
- Marital misconduct
When is spousal support modified?
Party seeking modification has burden of establishing significant and continuing change in circumstance in the need of the dependent spouse or the financial abilities of the obligor
When is a marital agreement enforceable? (FF VI’S) (5)
FF VI’S
- Full disclosure
- Fair and reasonable
- Voluntary
- In writing
- Signed
When does a court have jurisdiction to modify a child support order?
A state court with continuing jurisdiction may modify it, another state court may not unless the parties, including the child, no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction.
What clauses are unenforceable in a premarital agreement?
Child custody and support
Under the UCCJEA, what is the test to determine if a court has home-state jurisdiction?
- Child’s home state (where the child lived for at least 6 consecutive months, or since birth)
- Was the child’s home state in the past 6 months, and the child is absent from the state but one parent/guardian continues to live in the state.
What suits are barred by the 11A?
- Citizens of one state suing another state in federal court
- Suits in federal court against state officials for violating state law
- Citizens suing their own state in federal court
When is a time, place, or manner restriction on speech permissible?
- Content-neutral to subject matter and viewpoint
- Narrowly-tailored to serve a significant state interest
- Ample alternative channels for the communication of the information
How does injunctive relief interact with 11A
If a state official, rather than the state itself, is named as defendant, the official may be enjoined from enforcing a state law that violates federal law, or may be compelled to act in accord with federal law despite state law to the contrary.
What is the original jurisdiction of the Supreme Court?
- Ambassadors
- Public ministers and Consuls
- When a state is a party
When is Congress able to regulate purely private conduct?
Only 13A related to eliminating racial discrimination (“badges or incidents” of slavery)
When can a state enact legislation discriminating against out-of-state commerce? (PANTS) (5)
PANTS (Participant, Approval, Necessary, Traditional, Subsidy)
- Necessary to important state interest, no other nondiscriminatory means available
- State as Market Participant
- Traditional gov’t function exception
- Subsidies
- Federal/Congressional Approval
What are three fundamental rights?
Right to travel
Right to vote
Right to privacy (marriage, sexual relations, abortion, child rearing, right of related persons to live together)
What must a plaintiff prove to show standing?
- Injury in fact
- Causation
- Redressability
What are the four suspect classifications for whom strict scrutiny applies in an Equal Protection claim?
RENC
- Race
- Ethnicity
- National Origin
- If state law, citizenship status
When is intermediate scrutiny applied under Equal Protection?
When classification is based on gender or status as non-marital child.
Note: for gender, there must be an “exceedingly persuasive justification” for the classification.
When is the government permitted to restrict speech on the basis of content? (OI, FDC) (5)
OI, FDC
- Obscenity
- Incitement to violence
- Fighting Words
- Defamation
- Commercial speech
What is strict scrutiny?
The law must be the least restrictive means to achieve a compelling governmental interest.
Define rational basis
If a law is rationally related to a legitimate state interest.
Define intermediate scrutiny
The law must be substantially related to an important governmental interest.
What is the Lemon test for validating government action which benefits religion?
SPE
- Secular purpose
- Principal or primary effect neither advances nor inhibits religion
- Does not result in excessive gov’t entanglement with religion
What is the scope of the President’s power to remove executive officials?
Constitution says nothing about it but it is generally accepted President may remove any executive appointee without cause (and without Senate approval).
What are the requirements for adverse possession? (ANOCHE)
ANOCHE
Actual Notorious/Open Continuous Hostile Exclusive
When is a deed effective?
- Grantor intends to convey interest
- Grantor delivers deed
- Grantee accepts deed
What is Dependent Relative Revocation?
DRR allows a court to disregard a testator’s revocation that was based on a mistake of law or fact that would not have been made but for that mistake. The last effective will, prior to the set-aside revocation, will once again control.
How can a will be wholly or partially revoked?
POS
Subsequent writing
Physical destruction
Operation of Law
What are the formal execution requirements for a valid will? (WSJ, I U2) (6)
WSJ, I U2
Writing
Signed
Intent
Joint presence of two witnesses
Witnesses understand significance of the testator’s act
Witnesses understand the will has no legal effect until after the testator’s death
Under the modern trend, when is a gift an advancement?
Under UPC, if:
- Decedent declared it in a contemporaneous writing, or the heir acknowledged it in writing
- That writing otherwise indicates that the gift was to be taken into account in computing the division and distribution of the decedent’s intestate estate.
What are the six fiduciary duties of power of attorney?
- Exercise the powers for the benefit of the principal and in accordance with reasonable expectations
- Act in good faith
- Separate assets of principal from agent
- Exercise reasonable care, competence, and diligence
- Account for all transactions made on behalf of principal
- File an accounting of administration whenever so directed by the court
What is a valid trust purpose?
Any purpose as long as it is not illegal, restricted by rule of law or statute, contrary to public policy, or impossible.
What must be true for a trust to be considered charitable?
Must have a charitable purpose Must exist for the benefit of the community at large or for a class of persons the membership in which varies (NO ascertainable beneficiaries)
What is cy pres?
A court may modify a charitable trust to seek an alternative charitable purpose if the original purpose becomes illegal, impracticable, or impossible to perform
When can a noncharitable irrevocable trust be modified or terminated?
- By consent of all beneficiaries if court concludes that the trust continuance is not necessary to achieve any material purpose of the trust, or that modification is not inconsistent with the material purpose of the trust.
- By consent of all beneficiaries and settlor even though modification/termination is inconsistent with material purpose of trust.
When may a defendant be liable to a third-party victim for intentional infliction of emotional distress?
- the ∆ intentionally or recklessly causes severe emotional distress to
2a. a member of the victim’s immediate family who contemporaneously perceives the ∆’s conduct, whether or not it results in bodily injury
2b. any other bystander who contemporaneously perceives the conduct, if the distress results in bodily injury.
If ∆’s design or purpose was to cause sever distress to 3P victim, victim need not have contemporaneously perceived conduct.
What are the elements of assault? (AICI)
AICI
- Plaintiff’s reasonable apprehension
- Of an imminent harmful or offensive bodily contact
- Caused by ∆’s action or threat
- With intent to cause either apprehension of such contact or contact itself.
What is the definition of public nuisance?
Unreasonable interference with a right common to the general public.
Private citizens have claims for public nuisance only if that citizen suffers harm different in kind than that suffered by members of the general public.
What are the elements of Intentional Inflection of Emotional Distress? (IOCD)
IOCD
- Defendant’s intentional or reckless
- Extreme and outrageous conduct
- That causes
- Severe emotional distress
What is the definition of trespass to chattel?
∆intentionally interferes with π’s right of possession by either:
- dispossessing πof chattel, or
- using or intermeddling with chattel
What is the definition of conversion?
∆intentionally commits an act depriving πof possession of her chattel or interfering with chattel in a manner so serious as to deprive π of the use of teh chattel.
Damages are full value of chattel at time of conversion.
What are the elements for intentional misrepresentation (fraud, deceit)? (MIRRRA)
MIRRRA
- ∆ made a misrepresentation of a material fact, or failed to disclose a material fact when under an affirmative duty to do so
- ∆must have known the representation to be false or must have acted with reckless disregard as to its truthfulness
- ∆must have intended to induce π to act or refrain from acting in reliance on the misrepresentation
- πmust have actually relied on misrepresentation
- π’s reliance must have been justifiable
- π must prove actual damages
What is a private nuisance?
Thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land
What test is applied by most courts when the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury?
Substantial-factor test: In cases in which the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied is whether the ∆’s tortious conduct was a substantial factor in causing π’s harm.
What are the elements for intentional interference with a contract?
- Valid contract existed between π and 3P
- ∆ knew of the contract
- ∆ intentionally interfered with contract, causing breach
- Breach caused damages to π
What are four invasion of privacy torts? (PIMF)
PIMF
- Intrusion upon seclusion
- Misappropriation of the right of publicity
- False light
- Public disclosure of private facts
What are the elements of false imprisonment?
- ∆intends to confine or restrain another within boundaries fixed by ∆ (no reasonable means of safe escape)
- These actions directly or indirectly result in confinement
- The πis conscious of the confinement or harmed by it
What are the elements of defamation?
- ∆’s defamatory language
- Concerning the π
- is published to a 3P who understands its defamatory nature
- damaging π’s reputation.
What are the elements of res ipsa loquitur?
- Accident does not normally occur in the absence of negligence
- Caused by agent or instrumentality within exclusive control of ∆
- Not due to any action on part of π.
What is a shareholder’s preemptive right?
The right to buy enough stock to maintain your ownership percentage in the corporation if the corporation sells more stock; a waiver of preemptive rights in writing is irrevocable.
What are the two doctrines under which a person acting in good faith can avoid personal liability if a company was not in compliance with a state’s incorporation requirements?
- De facto corporation – person thought they had incorporated correctly
- Corporation by estoppel – 3P dealt with them as though they were corporation
What is the business judgment rule?
Business decisions taken by directors are presumed to be in good faith unless a showing of fraud, dereliction of duty, condoning illegal conduct, or conflict of interest.
When does a court pierce the corporate veil?
Generally reluctant, fact-sensitive inquiry, will look at totality of circumstance (basically, is corporation used as façade for a dominant shareholder’s personal dealings?)
- undercapitalization
- disregard of corporate formalities
- using corporation’s assets as shareholder’s own assets
- self-dealing with corporation
- siphoning of corporation’s funds
- using corporate form to avoid statutory requirements
- shareholder’s domination over a corporation
- fraudulent dealings with creditor
What is an S corporation vs. a C corporation?
C is basic, separate taxable entity from shareholders, so double taxation (profits taxed when they are brought in, shareholders taxed on distributions they receive).
S corporations have “pass through” taxation, income and expenses of corporation are passed through to shareholders who are taxed on such items directly.
What are the benefits of an LLC?
Like an S corporation, an LLC combines the federal tax advantages of a partnership with the limited liability of a corporation. An LLC also provides flexibility in management.
What are the basic duties of a director towards their corporation?
Duty of care
Duty of loyalty
What is the plain error doctrine?
A ∆ who has failed to preserve a claim of error in district court is still entitled to appellate relief when:
- the district court has committed error under the law in effect at the time the appeal is heard
- the error is obvious under that law
- the error affected ∆’s substantial rights
When is the warantless search of a vehicle permitted as a search incident to lawful arrest?
- The arrestee is within reaching distance of the passenger compartment and may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by arrestee, or
- Reasonable that evidence of the offense of the arrest might be found in the vehicle.
What is transactional v. use or derivative use immunity?
Transactional (“blanket” or “total”) fully protects a witness from future prosecution for crimes related to her testimony.
Use or derivative-use immunity only precludes prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness.
When is the search of an automobile permitted as an exception to the search warrant requirement?
When police have probable cause, they may search anywhere in a car that they believe there to be contraband, including trunk and locked containers. Only applies to compartments/containers that could reasonably hold the evidence they are searching for.
What are 7 exceptions to the exclusionary rule?
- Inevitable discovery
- Independent source
- Attenuation principle (causation b/w primary taint and evidence has been so attenuated by time or intervening events)
- Good-faith exception (police acted in good faith on an invalid warrant or an existing law later declared unconstitutional)
- Isolated police negligence (conduct not sufficiently deliberate enough)
- Knock and announce (violation of knock and announce)
- in-court identification (evidence is a witness’s in-court identification of ∆)
What is curtilage?
The area immediately surrounding the home, known as “curtilage”, may be covered by the “umbrella” of the 4A protection.
- Proximity of area to home
- Is area included within an enclosure surrounding the home
- Nature of the uses to which the area is put
- Steps taken to protect area from observation from passersby
