Deck Flashcards
Permissive joinder
Common question of law or fact
Same t/o
Does not defeat SMJ
Required joinder
Necessary
1. No complete relief
2 interest impaired/ impeded
3. Multiple/ inconsistent judgments
Joinder feasible
- Not receive SMJ
- Court has PJ
INDISPENSABLE 1. Prejudice 2. Prejudice avoided by shaping 3 adequate remedy 4. Other forum available
Exigent circumstances
Évanescent
Imminent destruction
Hot pursuit and plain view
Emergency aid
Terry Stop -
Stop and Frisk
Reasonable articulable suspicion
Criminal activity afoot and has a weapon
Object to jury instruction
- make objection before jury retires
- state on record matter objected to
- state grounds for objection
Intentional Torts
Battery Assault False imprisonment Trespass land/ chattels Conversion IIED
Transferred Intent Torts
Assault
Battery
False imprisonment
Trespass to land / chattels
Erie - Substantive
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
Erie - Procedural
How the case goes forward in court
- Civil procedure rules
- Burden of proof
- Rebuttable presumptions
- Ordering physician evaluation
- Venue
Statement against penal interest
- against pecuinary, priprietary, penal interest when made (only make if know its true)
- personal knowledge of facts
- aware against interest/ no motive to misrepresent
- unavailable
- doesn’t violate confrontation right
Testimonial evidence is inadmissible in crim if:
inadmissible if:
- in criminal case
- testimonial (investigating completed thing)
- declarant is unavailable
- no opportunity to cross-examine
When can state tax fed?
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)
Restraint on alienation
Restraint on fee simple: Usually void even if for short period of time
Life estate restraints on alienation: ok
When is double jeopardy waived?
manifest necessity ofr a mistrial (ie hung jury or misconduct by D)
How Can impleaded party sue?
If arises under same T/O + SMJ
Standard for getting access to work product
Substantial need & avoid undue hardship
- Cost of producing considered
Reformation
Change writing so it conforms w/ original intent of parties.
FOR: mutual mistake, fraudulent/innocent misrepresentation
Deprivation of counsel rule for non-trial proceedings
harmless error (conviction not overturned if suspect denied counsel at pre-charge lineup)
Restitution
Pay FMV
FOR: avoid unjust enrichment// quasi contract
Expectation
Contract - Cost of replacement
FOR: Standard
Reliance
Returns parties to status quo (+ consequential + incidential)
FOR: expectuation too speculative
Incidental Damages
commercially reasoanble expences incurred due to breach
FOR: always recoverable
Consequential Damages
reasonably foreseeabe losses due to circumstance
- when K made
- by reasonable person
- foreseeable
Liquidated
Contractually determined amount.
FOR
1. dmgs difficult to ascertain when formed
2. amount is reasonbale
Does dismissal with prejudice count as a judgement on the merits?
Yes.
Unless court says otherwise, later claims following dismissal w/ prejudice will be precluded.
Dead man act
1. Civil action only
2. Interested person/ predecessor in interest
3. cannot testify re: personal transaction/communication with deceased
4. when offered against transaction/ communication with deceased.
Not a federal statute
Implied Reciprocal Servitude
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.
hearsay: employees' complaints - business record?
Not a business record becuase a business record is:
1. made in the ordinary course of business
2. by one with proper knowledge
3. near time of event
No duty of employee to file complaints so not a business record
Duty owed by common carrier/ inkeeper
Duty even for "slight negligence" - must still show some negligence
Grounds for fault divorce
MACAW
M: mental illness
A: adultery
C: extreme physical/mental cruelty
A: drug addiction/ habitual drunkeness
W: willful desertion for specified time
Defenses to Fault Divorceq
i don't Condone that you Coniving Coluding Rat!
Collusion: agreement to stimulate grounds for divorce
Connivance: consent to other's misconduct
Condonation: forgives
Recrimination: other spouse is guilty
How are support orders enforced when payor refuses to pay/
- contempt of court
- judgment against non-paying
-seizure of real prperty
- attachment of wages
- order of payment of attorney's fees
child support: wage withholding & tax return
Uniform Interstate Family Support Act
Enforce support orders issued in other state
1. income withholding order mailed to obligor's employer automatically triggers withholding
2. can mail income withholding order to state where obligor lives and then order can be enforced as if issued in that state
Seperation agreement
Entered into during marriage
- must be voluntary
property/spousal support enforced (not child)
Merge: Divorce decree can merge with seperation agreement (or if provisions in agreement are repeated in the decree)
If no merge: enforceable contract b/w parties
Joint custody?
- parental fitness
- agreement re: joint custody
- ability to communicate
- child's preference
- involvvement of parents
- geographic proximity
effect of JT on child
- physical ability to carry out joint custody
Uniform Child Custody Jurisdiction and Enforcement action
avoid jurisdictional dipsutes on matters of child custody/ visitation
facilitates enforcement of custody & visitation orders
Child custody jurisdiction
1. child's home
2. was child's home in last 6 mo + parent lives there
if none of the above
where child & at least 1 parent/acting as parent has sig. connection and sub. evidence concerning child is available in state.
Request for attorney msut be
clear & unambiguous
attenuation doctrine
where nexus between unconstitutional police action and evidence is interupted/remote - evidence not surpriseed.
1. temporal proximity
2. intervening circumstnace
3. flagrancy/ puprose of miscondcut
Crim recklessness vs. Crim negligence
Reckless: consciously disregard....
Negligence: fails to be aware of...
substantial & unjustifiable risk
Prenup
- signed (party to be charged)
- writing
- voluntary
- full & fair disclosure of financial worth
- consideration = marriage
- fair & reassonble economic provisions (unconscionability determined at time of entry into K)
- against public policy to enforce no spousal support if spouse would be dependent on state
Failure to update/supplement & motions
Failure to to update/ provide info results in party not being able to use undisclosed information as evidence on a motion
Exception: justification or harmless non-disclosure
learned who created harmful drug but did not update disclosures; manufacturer moved for SJ; plaintiff responded w/ affidavit referencing who hurt him. grant sj.
Effect of untimely disclosure of evidence favorable to defense
Brady disclosures.
Violation of brady is grounds for reversal/ new trial if D shows:
- evidence was favorable b/c it is impeaching or exculpatory
- prejudice resulted (reasonbly probability of different outcome)
whether disclosure was deliberate or not is not relevant.
Mortgagee in Possession
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)
Objecting to witness's testimony
Preserving for appeal:
- Timely: must object before W leaves stand
- Must state specific basis for objection to preserve issue for appeal
Motion to strike:
- First opportunity (even after inadmissible presented to jury)
Types of immunity
Transactional: prevents a witness from being prosecuted for any crime referred to in his testimony (can still be prosecuted for perjury)
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 (cant testify agasinst friend then have friend testify against decalarant)
Death Penalty
No:
- 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.
- not for rape if not intended to kill/did kill
- Felony murder - unless acted with reckless indifference to value of human life
- intellectually disabled/ insane at time of commission
- 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)
CONSTRUCTIVE CONDITION
Bilateral contracts only
Court presumes mutual dependency of actions
If one part will take period of time to complete & other completed in an instant, longer is condition precedent to shorter
ie “one month of completion” is constructive condition and longer act will be considered condition precedent.
Consideration
- promisee gives up something of value/ circumscribes liberty
- promisor makes promise as part of bargained for exchange
Courts will use ordinary meaning unless clear meant in technical sense (ie 1 month of compeltion construed to mean 1 month following) - constructive condition
Federal Government's Sovereign Immunity
applies to monetary relief
Not immune from injunctive relief
When can a suit to enjoin enforcement of a statute be made before enforcement?
Not where clear that exeuctive plans never to enforce it.
Yes where imminent injury is present and someone could be subject to prosecution at any time.
Erie - Federal defenses
fed common law preempts state law when unique or peculiar federal interest & state law is in direct confclit
ie no negligence cause of action on military bases
Res Ipsa Liquitur
Can be brought even though it is possible thrid party intervened as long as negligenet party had exclusive control
2 plaintiffs and 1 has insufficient amount in controversy
if insufficient claims are so related to original jurisdiction claim that they are part of same case or controversy, supplemental jurisdiction provided.
When is threat to kill spouse if they testify admissible?
To show plan, knowlededge or consciousness of guilt
Result if mortgage is not recorded until after new buyer takes?
If no notice, (and in notice jurisdiciton) buyer takes free of mortgage and there is no enforceable lien.
When are prior consistent statemetns/ statemetns of identification admissible?
After witness has testified (if they refuse to answer questions & held in contempt cannot use).
Consistent: to rebut claim of lying if statement made b/f incentive to lie OR to rehabit credibility after impeachment
Identification: FIRST Declarant testifies & subject to cross concerning statement THEN ADMIT STATEMENT
Requirement for court ordered exam?
motion to show good cause (notice to all parties)
mental/physical state is in controversy
Can congress remove executive officers?
No other than through impeachment.
Set aside DEFAULT JUDGMENT
Default = notation that no answer filed
Set aside default: before judgment entered
Default Judgment = same effect as any other judgment
Set aside Default Judgment for: excusable neglect/ new evidence/ misrep by other side/ void judgment/ judgment satisfied/ any other reason
Recipient of land dies - Testator vs. Future Interest
Future interest: goes to heirs/ according to will
Named in will: deceased perseon cannot take land so right will lapse
When is the full contract price of something recoverable?
- buyer has accepted goods
- goods lost/ damaged w/in commercially resaonble time after risk of loss passed to buyer
- buyer returned/ rejected godos and seller is unable to resell
Recovery when wrongfully rejected goods
Contract price - mrkt price OR
contract price - resale price
Enforceability of “no oral modification”
UCC: means no oral modification
CL: ignores:
CL: When do modifications not need to have consideration?
good faith dispute
fair & equitable + unforeseeable undue hardshipp
Standard for a group excluding another
Forced inclusion of an unwatned person violates freedom of association if inclusion would significantly affect the grou's ability to express its viewpoints
Who can court impose Rule 11 sanctions on?
lawyers
NOT represented party
Methods of Impeachment & EE?
- Prior inconsistent statement (under oath = substantive too) (E/E) - must get chance to explain + statement must be relevant
- Reputation/evidence of untruthfulness (E/E)
- Bias/motive to misrepresent (E/E if witness denies bias)
- Prior conviction (dishonest = always admissible; felony: 10 years)
- Specific act of misconduct that bear on truthfulness (no E/E)
