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1
Q

Permissive joinder

A

Common question of law or fact
Same t/o
Does not defeat SMJ

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2
Q

Required joinder

A

Necessary
1. No complete relief
2 interest impaired/ impeded
3. Multiple/ inconsistent judgments

Joinder feasible

  1. Not receive SMJ
  2. Court has PJ
INDISPENSABLE
1. Prejudice
2. Prejudice avoided by shaping
3 adequate remedy
4. Other forum available
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3
Q

Exigent circumstances

A

Évanescent
Imminent destruction
Hot pursuit and plain view
Emergency aid

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4
Q

Terry Stop -

Stop and Frisk

A

Reasonable articulable suspicion

Criminal activity afoot and has a weapon

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5
Q

Object to jury instruction

A
  1. make objection before jury retires
  2. state on record matter objected to
  3. state grounds for objection
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6
Q

Intentional Torts

A 
Battery
Assault
False imprisonment
Trespass land/ chattels
Conversion
IIED
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7
Q

Transferred Intent Torts

A

Assault
Battery
False imprisonment
Trespass to land / chattels

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8
Q

Erie - Substantive

A 
Conflict/ choice of law
Elements of claim or defense
ONLY STATE COURTS: Statues of limitations that condition a substantive right// Tolling of Statute of limitation 
Statute of Frauds
Irrebuttable presumptions
Damages
Standard for granting new trial if jury award is excessive/inadequate 
Preclusion
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9
Q

Erie - Procedural

A

How the case goes forward in court

  • Civil procedure rules
  • Burden of proof
  • Rebuttable presumptions
  • Ordering physician evaluation
  • Venue
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10
Q

Statement against penal interest

A
  1. against pecuinary, priprietary, penal interest when made (only make if know its true)
  2. personal knowledge of facts
  3. aware against interest/ no motive to misrepresent
  4. unavailable
  5. doesn’t violate confrontation right
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11
Q

Testimonial evidence is inadmissible in crim if:

A

inadmissible if:

  1. in criminal case
  2. testimonial (investigating completed thing)
  3. declarant is unavailable
  4. no opportunity to cross-examine
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12
Q

When can state tax fed?

A

YES: non-discriminatory indirect tax + do not unreasonably burden (ie income tax on salaries of feds)
NO: direct tax (ie tax on fed gaming/ lottery)

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13
Q

Restraint on alienation

A

Restraint on fee simple: Usually void even if for short period of time
Life estate restraints on alienation: ok

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14
Q

When is double jeopardy waived?

A

manifest necessity ofr a mistrial (ie hung jury or misconduct by D)

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15
Q

How Can impleaded party sue?

A

If arises under same T/O + SMJ

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16
Q

Standard for getting access to work product

A

Substantial need & avoid undue hardship

- Cost of producing considered

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17
Q

Reformation

A

Change writing so it conforms w/ original intent of parties.

FOR: mutual mistake, fraudulent/innocent misrepresentation

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18
Q

Deprivation of counsel rule for non-trial proceedings

A 
harmless error 
(conviction not overturned if suspect denied counsel at pre-charge lineup)
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19
Q

Restitution

A

Pay FMV

FOR: avoid unjust enrichment// quasi contract

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20
Q

Expectation

A

Contract - Cost of replacement

FOR: Standard

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21
Q

Reliance

A

Returns parties to status quo (+ consequential + incidential)
FOR: expectuation too speculative

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22
Q

Incidental Damages

A

commercially reasoanble expences incurred due to breach

FOR: always recoverable

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23
Q

Consequential Damages

A

reasonably foreseeabe losses due to circumstance

  1. when K made
  2. by reasonable person
  3. foreseeable
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24
Q

Liquidated

A

Contractually determined amount.
FOR
1. dmgs difficult to ascertain when formed
2. amount is reasonbale

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25
Q

Recission

A

For mutual mistake & misrep can also choose to reform.

  1. Mutual mistake of material fact (didn’t know video games would only work for one consol)
  2. Unilateral mistake of & other party knew or should know
  3. Unilateral mistake if hardship by mistaken party is so extreme it outweighs expectations
  4. Misrepresentation of fact or law (ie dealer not disclosing car was in accident)
  5. Undue influence, illegality, lack of capacity
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26
Q

Modifcaition contract - is writing / onsideration requried?

A

Writing: y if SOF
CL: consideration unless unforeseeable + fair & equitable
UCC: good faith

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27
Q

<p>Does dismissal with prejudice count as a judgement on the merits?</p>

A

<p>Yes. <br></br>Unless court says otherwise, later claims following dismissal w/ prejudice will be precluded.</p>

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28
Q

<p>Dead man act</p>

A

<p>1. Civil action only<br></br>2. Interested person/ predecessor in interest <br></br>3. cannot testify re: personal transaction/communication with deceased <br></br>4. when offered against transaction/ communication with deceased. <br></br><br></br>Not a federal statute</p>

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29
Q

<p>Implied Reciprocal Servitude</p>

A

<p>an implied reciprocal servitude attaches to the grantor's retained land at the moment she deeds a lot with the restriction. Thus, all of the other landowners in the subdivision could potentially enforce the covenant.</p>

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30
Q

<p>hearsay: employees' complaints - business record?</p>

A

<p>Not a business record becuase a business record is:<br></br>1. made in the ordinary course of business<br></br>2. by one with proper knowledge<br></br>3. near time of event <br></br><br></br>No duty of employee to file complaints so not a business record</p>

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31
Q

<p>Duty owed by common carrier/ inkeeper</p>

A

<p>Duty even for "slight negligence" - must still show some negligence</p>

32
Q

<p>Grounds for fault divorce</p>

A

<p>MACAW<br></br>M: mental illness<br></br>A: adultery<br></br>C: extreme physical/mental cruelty<br></br>A: drug addiction/ habitual drunkeness<br></br>W: willful desertion for specified time</p>

33
Q

<p>Defenses to Fault Divorceq</p>

A

<p><em>i don't</em>Condone <em>that you</em> Coniving Coluding Rat!</p>

<p>Collusion: agreement to stimulate grounds for divorce<br></br>
Connivance: consent to other's misconduct<br></br>
Condonation: forgives<br></br>
Recrimination: other spouse is guilty</p>

34
Q

<p>How are support orders enforced when payor refuses to pay/</p>

A

<p>- contempt of court<br></br>- judgment against non-paying<br></br>-seizure of real prperty<br></br>- attachment of wages<br></br>- order of payment of attorney's fees <br></br>child support: wage withholding & tax return</p>

35
Q

<p>Uniform Interstate Family Support Act</p>

A

<p>Enforce support orders issued in other state<br></br>1. income withholding order mailed to obligor's employer automatically triggers withholding <br></br>2. can mail income withholding order to state where obligor lives and then order can be enforced as if issued in that state</p>

36
Q

<p>Seperation agreement</p>

A

<p>Entered into during marriage<br></br>- must be voluntary<br></br>property/spousal support enforced (not child)<br></br>Merge: Divorce decree can merge with seperation agreement (or if provisions in agreement are repeated in the decree) <br></br>If no merge: enforceable contract b/w parties</p>

37
Q

<p>Joint custody?</p>

A

<p>- parental fitness<br></br>- agreement re: joint custody<br></br>- ability to communicate<br></br>- child's preference<br></br>- involvvement of parents<br></br>- geographic proximity<br></br>effect of JT on child<br></br>- physical ability to carry out joint custody</p>

38
Q

<p>Uniform Child Custody Jurisdiction and Enforcement action</p>

A

<p>avoid jurisdictional dipsutes on matters of child custody/ visitation <br></br>facilitates enforcement of custody & visitation orders</p>

39
Q

<p>Child custody jurisdiction</p>

A

<p>1. child's home<br></br>2. was child's home in last 6 mo + parent lives there <br></br>if none of the above<br></br>where child & at least 1 parent/acting as parent has sig. connection and sub. evidence concerning child is available in state.</p>

40
Q

<p>Request for attorney msut be</p>

A

<p>clear & unambiguous</p>

41
Q

<p>attenuation doctrine</p>

A

<p>where nexus between unconstitutional police action and evidence is interupted/remote - evidence not surpriseed.<br></br>1. temporal proximity<br></br>2. intervening circumstnace<br></br>3. flagrancy/ puprose of miscondcut</p>

42
Q

<p>Crim recklessness vs. Crim negligence</p>

A

<p>Reckless: consciously disregard....<br></br>Negligence: fails to be aware of...<br></br><br></br> substantial & unjustifiable risk</p>

43
Q

<p>Prenup</p>

A

<ol><li>signed (party to be charged)</li><li>writing</li><li>voluntary</li><li>full & fair disclosure of financial worth</li><li>consideration = marriage</li><li>fair & reassonble economic provisions (unconscionability determined at time of entry into K)</li><li>against public policy to enforce no spousal support if spouse would be dependent on state</li><li></li></ol>

44
Q

<p>Failure to update/supplement & motions</p>

A

<p>Failure to to update/ provide info results in party not being able to use undisclosed information as evidence on a motion<br></br>Exception: justification or harmless non-disclosure</p>

<p><i>learned who created harmful drug but did not update disclosures; manufacturer moved for SJ; plaintiff responded w/ affidavit referencing who hurt him. grant sj.</i></p>

45
Q

<p>Effect of untimely disclosure of evidence favorable to defense</p>

A

<p>Brady disclosures.</p>

<p>Violation of brady is grounds for reversal/ new trial if D shows:</p>

<ol><li>evidence was favorable b/c it is impeaching or exculpatory</li><li>prejudice resulted (reasonbly probability of different outcome)</li></ol>

<p><i>whether disclosure was deliberate or not is not relevant.</i></p>

46
Q

<p>Mortgagee in Possession</p>

A

<p>If mortagor abandons and mortgagee takes possessiion to maintain value of secuirty interest, duties become that of actual owner (maintain in reasonable condition; credit rents against mortgage debt; torts occuring on land)</p>

47
Q

<p>Objecting to witness's testimony</p>

A

<p><strong>Preserving for appeal:</strong></p>

<ul><li>Timely: must object before W leaves stand</li><li>Must state specific basis for objection to preserve issue for appeal</li></ul>

<p><strong>Motion to strike:</strong></p>

<ul><li>First opportunity (even after inadmissible presented to jury)</li></ul>

48
Q

<p>Types of immunity</p>

A

<p><span>Transactional: prevents a witness from being prosecuted for any crime referred to in his testimony (can still be prosecuted for perjury)</span><br></br><br></br><span>Immunity: prevents the use of the witness's compelled testimony against that witness in a later criminal prosecution; may still be prosecuted, but only based on evidence not gathered from the protected testimony<i> (cant testify agasinst friend then have friend testify against decalarant)</i></span><br></br></p>

49
Q

<p>Death Penalty</p>

A

<p>No:</p>

<ul><li><span>If statutory scheme permitting death penalty does not give trier of fact enough information and guidance in making the decision (Not vague & all mitigating evidence must be considered.</span></li><li>not for rape if not intended to kill/did kill</li><li>Felony murder - unless acted with reckless indifference to value of human life</li><li><span>intellectually disabled/ insane at time of commission</span></li><li><span>under 18 when they committed the offense ( also a mandatory life imprisonment without the possibility of parole on a person who was a minor at the time the offense was committed would be cruel and unusual pubishment)</span></li></ul>

<p></p>

50
Q

<p>CONSTRUCTIVE CONDITION</p>

A

<p>Bilateral contracts only</p>

<p>Court presumes <u><strong>mutual dependency</strong></u> of actions</p>

<p>If one part will take period of time to complete & other completed in an instant, longer is condition precedent to shorter</p>

<p>ie “one month of completion” is constructive condition and longer act will be considered condition precedent.</p>

51
Q

<p>Consideration</p>

A

<ol><li>promisee gives up something of value/ circumscribes liberty</li><li>promisor makes promise as part of bargained for exchange</li></ol>

<p>Courts will use ordinary meaning unless clear meant in technical sense (ie 1 month of compeltion construed to mean 1 month following) - constructive condition</p>

52
Q

<p>Federal Government's Sovereign Immunity</p>

A

<p>applies to monetary relief</p>

<p>Not immune from injunctive relief</p>

53
Q

<p>When can a suit to enjoin enforcement of a statute be made before enforcement?</p>

A

<p>Not where clear that exeuctive plans never to enforce it.</p>

<p>Yes where imminent injury is present and someone could be subject to prosecution at any time.</p>

54
Q

<p>Erie - Federal defenses</p>

A

<p>fed common law preempts state law when unique or peculiar federal interest & state law is in direct confclit</p>

<p><i>ie no negligence cause of action on military bases</i></p>

55
Q

<p>Res Ipsa Liquitur</p>

A

<p>Can be brought even though it is possible thrid party intervened as long as negligenet party had exclusive control</p>

56
Q

<p>2 plaintiffs and 1 has insufficient amount in controversy</p>

A

<p>if insufficient claims are so related to original jurisdiction claim that they are part of same case or controversy, supplemental jurisdiction provided.</p>

57
Q

<p>When is threat to kill spouse if they testify admissible?</p>

A

<p>To show plan, knowlededge or consciousness of guilt</p>

58
Q

<p>Result if mortgage is not recorded until after new buyer takes?</p>

A

<p>If no notice, (and in notice jurisdiciton) buyer takes free of mortgage and there is no enforceable lien.</p>

59
Q

<p>When are prior consistent statemetns/ statemetns of identification admissible?</p>

A

<p>After witness has testified (if they refuse to answer questions & held in contempt cannot use).</p>

<p>Consistent: to rebut claim of lying if statement made b/f incentive to lie OR to rehabit credibility after impeachment</p>

<p>Identification: FIRST Declarant testifies & subject to cross concerning statement THEN ADMIT STATEMENT</p>

60
Q

<p>Requirement for court ordered exam?</p>

A

<p>motion to show good cause (notice to all parties)</p>

<p>mental/physical state is in controversy</p>

61
Q

<p>Can congress remove executive officers?</p>

A

<p>No other than through impeachment.</p>

62
Q

<p>Set aside DEFAULT JUDGMENT</p>

A

<p>Default = notation that no answer filed</p>

<p>Set aside default: before judgment entered</p>

<p>Default Judgment = same effect as any other judgment</p>

<p>Set aside Default Judgment for: excusable neglect/ new evidence/ misrep by other side/ void judgment/ judgment satisfied/ any other reason </p>

63
Q

<p>Recipient of land dies - Testator vs. Future Interest</p>

A

<p>Future interest: goes to heirs/ according to will</p>

<p>Named in will: deceased perseon cannot take land so right will lapse</p>

64
Q

<p>When is the full contract price of something recoverable?</p>

A

<ol><li>buyer has accepted goods</li><li>goods lost/ damaged w/in commercially resaonble time after risk of loss passed to buyer</li><li>buyer returned/ rejected godos and seller is unable to resell</li></ol>

65
Q

<p>Recovery when wrongfully rejected goods</p>

A

<p>Contract price - mrkt price OR</p>

<p>contract price - resale price</p>

66
Q

<p>Enforceability of “no oral modification”</p>

A

<p>UCC: means no oral modification</p>

<p>CL: ignores:</p>

67
Q

<p>CL: When do modifications not need to have consideration?</p>

A

<p>good faith dispute</p>

<p>fair & equitable + unforeseeable undue hardshipp</p>

68
Q

<p>Standard for a group excluding another</p>

A

<p>Forced inclusion of an unwatned person violates freedom of association if inclusion would significantly affect the grou's ability to express its viewpoints</p>

69
Q

<p>Who can court impose Rule 11 sanctions on?</p>

A

<p>lawyers</p>

<p>NOT represented party</p>

70
Q

<p>Methods of Impeachment & EE?</p>

A

<ol><li><strong>Prior inconsistent statement</strong> (under oath = substantive too) <strong>(E/E)</strong>- must get chance to explain + statement must be relevant</li><li><strong>Reputation/evidence of untruthfulness</strong> <strong>(E/E)</strong></li><li><strong>Bias/motive to misrepresent</strong> <strong>(E/E if witness denies bias)</strong></li><li><strong>Prior conviction</strong> (dishonest = always admissible; felony: 10 years)</li><li><strong>Specific act of misconduct that bear on truthfulness</strong> <strong>(no E/E)</strong></li></ol>

71
Q
A
72
Q

Easement by Implication

A
  1. land severed by common ownership
  2. previously used when connected
  3. easement is reasonably neesary
73
Q

Testimony to cellmate of comments from co-defendatn

A

Testifying co-defendant requries cross-examination to avoid 6A right to confrontation.

Must cross-examine co-defendant whose confession is used against him - even if there were limiting instructions

74
Q

Judge’s discretion control order of evidence presented

A

Judge has broad discretion to control the mode/order of examining witnesses presnting evidence to avoid tailoring testimony to that of other witnesses

75
Q

Protective sweep

A

Protective sweep after arrest is only for people not weapons

76
Q

Is airplane responsible for battery following intoxication of passenger?

A

No. Not battery b/c no vicarious liability.

May be responsible for neglagence tort but not battery.

77
Q

When can

A

Bar Prep (14 decks)

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