Essay

Question 1

Bailment

Answer 1

A bailment is formed by the delivery of personal property by one person to another in trust for a specific purpose, coupled with an express or implied contract.

A bailee who is entrusted with the bailor’s personal property is responsible for exercising a level of care over the bailed property that corresponds with the three categories of bailment that are distinguished according to who benefits from the relationship.

A bailment is for the sole benefit of the bailor (property owner), the bailee is only liable for gross negligence.

A bailment that benefits only the bailee, bailee is liable for even the slightest negligence.

A bailment that benefits both parties, bailee is liable for ordinary negligence.

Question 2

Gift

Answer 2

(1) the donor must possess an intent to gratuitously pass title to the donee;
(2) there must be actual or constructive delivery; and
(3) the donee must accept the gift, although a gift beneficial to the donee will be presumed to
have been accepted.

Question 3

Gift Causa Mortis

Answer 3

Gift of personal property made by a person in the expectation of imminent death, on condition that the donor dies as anticipated, leaving the donee surviving him.

It is the apprehension or expectation of imminent death, and not the actual imminence of death, which is evaluated

Question 4

Gift engagement ring

Answer 4

Given in contemplation of marriage. If the engagement is cancelled, the ring must be returned if the donor so requests since the gift is not capable of being completed because the condition or marriage is not met.

Question 5

Lost and Unclaimed Property Act

Answer 5

In Michigan, there is no legal distinction between lost and mislaid property with respect to a finder’s legal status as it relates to the owner. The Lost and Unclaimed Property Act requires the finder to report the finding or deliver the property to a law enforcement agency in the jurisdiction where the property is found.

The person shall provide their name and current address to the law enforcement agency and shall inform the agency of any change in their address.

Law enforcement would be required to mail notice to any known legal owner of major value property identifying, among other things, its location, the date found, type of property, etc.

Property categorized as having major value may be returned to the finder if the owner fails to claim it within six months from the date of the notice or if a legal owner cannot be established or located.

Property of major value is statutorily defined as “any property that is not collectible currency, contraband, currency, evidence, hazardous material, junk, perishable property, or property of minor value.

Question 6

Abandoned Property

Answer 6

First, it must be shown that there is an intent to relinquish the property and,
second, there must be external acts that put that intention into effect.

Question 7

Garnishment

Answer 7

A judgment creditor has the legal right to the garnishment of the assets, or payments due.

Judgment debtors may file objections to garnishments:

(a) the funds or property are exempt from garnishment by law;
(b) garnishment is precluded by the pendency of bankruptcy proceedings;
(c) garnishment is barred by an installment payment order;
(d) garnishment is precluded because the maximum amount permitted by law is being withheld pursuant to a higher priority garnishment or order;
(e) the judgment has been paid;
(f) the garnishment was not properly issued or is otherwise invalid.

Financial hardship is not a proper challenge to a garnishment.

Timelines for Judgement Collections

Generally, collection efforts are only allowed to begin on a final judgement 21 days after entry. The statute of limitations for collection on a judgement is 10 years.

The court will issue a writ of garnishment which must be served on garnishee within 182 days, garnishee must serve debtor within 7 days, and garnishee must then file a disclosure statement with the court within 14 days. 28 day grace period or judgement against garnishee.

Wages
- Max 25% of weekly disposable wages.

Joint Bank Account
- Likely only entitled to one half of the contents of the account. Holders of join bank accounts are considered joint tenants with rights of survivorship. Absent facts to the contrary, two account holders are presumed to contribute equally to the account balance.

Writ of Execution
Assets (typically vehicles)
- Assets can be sold and the proceeds would be credited to the judgment balance. Must not breach the peace in collecting asset.

Transfers to other people are voidable under the “Uniform Voidable Transactions Act” which allows for the reversal of fraudulent transfers, if it can be shown by a preponderance of the evidence that the transfer was intended to defraud the creditor.

Social Security
- Social security benefits are exempt from garnishment.

Commercial Lease Rental Payments
- Under Michigan Law, rental payments may be garnished by court order; ordering a tenant to pay the creditor directly a percentage of the rent.

Inheritance money in a bank account
- Creditors may garnish a bank account funded primarily by inheritance money through a non-periodic (ONE-TIME) payment from the account, not to exceed the judgment amount.

Question 8

Contracts Choice of Law

Answer 8

The place with the most significant relation will govern.

A choice of law provision will govern unless that state has no relation the parties or transaction.

If there is NO choice of law provision:

• place of contract
• place of contract negotiation
• place of performance
• location of the subject matter of the contract
• domicile, residence place of incorporation and place of business of the parties.

Question 9

Tort Choice of Law

Answer 9

Michigan uses the “Interest Analysis” when more than one state is implicated. MI Courts apply MI law unless a rational reason exists to do otherwise.

First, we must determine if any foreign state has an interest in having its law applied. If no state has such an interest, the presumption Michigan law will apply cannot be overcome.

In regard to a tort action for personal injury:

(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation, and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.”

Note: Being a resident of a foreign state is not enough to use foreign law.

Question 10

Agency Actual, Implied, or Apparent (Ostensible) Authority

Answer 10

An agency is a fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or actions.

The authority of an agent to act on behalf of a principal such that the principal is bound by those actions, is either (1) actual or (2) apparent/ostensible.

Actual authority may be express or implied. Implied authority is the authority which an agent believes they possess.

Apparent authority may be found when principal reasonably leads a third person to believe that an agency relationship exists based on the totality of circumstances. A principal may be estopped from challenging the authority of an agent when a person of ordinary prudence is justified in assuming the agents authority.

(1) the person dealing with the agent must reasonably believe in the agent’s authority
(2) the belief must be generated by some act or neglect on the part of the principal sought to be charged, and
(3) the person relying on the agent’s authority must not be guilty of negligence

Question 11

Ratification

Answer 11

Ratification is the affirmance by a person of a prior act which did not bind them but which was done or professedly done on their account, whereby the act is given effect as if originally authorized by them.

Affirmance is either

(a) a manifestation of an election by one on whose account an unauthorized act has been done to treat the act as authorized, or
(b) conduct by him justifiable only if there were such an election.

Question 12

Formal Will

Holographic Will

Failed Will

Anti-lapse

Answer 12

EPIC Estate and Protected Individuals Code

18 years of age or older and of sufficient mental capacity.
Understand providing for disposition of property after death
Nature and extent of property
Natural objects of their bounty
Understand in reasonable manner the general nature and effect of signing the will

Writing
Signed by testator
Two witnesses (can be interested)

Material provisions of the will are in the testator’s handwriting
Signed by the testator
Dated

Clear and convincing evidence of decedent’s intent that writing is a will, revocation, alteration, or revival.

Any assets not disposed of by will passes be intestate succession.

Anti-lapse
If a devisee fails to survive the testator, but the devisee is a grandparent, decendant of grandparent, or stepchild, then the gift will pass to the decendants of the beneficiary, provided they survive by 120 hours after the testator’s death. The surviving decendants take by representation the property to which the devisee would have taken had the devisee survived the testator.

Undue influence
1) fiduciary relationship, 2) fiduciary takes under will, and 3) opportunity for influence.

Question 13

120 hour rule

Answer 13

an individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of . . . intestate succession, and the decedent’s heirs are determined accordingly

Question 14

Elective Share

Answer 14

One half of intestate share less half the value of all the property received from decedent outside of will

Question 15

Five statutory trust requirements

Answer 15

Michigan Trust Code
Transfer of property to another person as trustee during the settlor’s lifetime.

Settlor has capacity
Settlor has intent to create trust
Definite beneficiary, charitable trust, trust for noncharitable purpose, trust for the care of an animal
Trustee has duties to perform
Same person is not the sole trustee and sole beneficiary

Oral - clear and convincing evidence (only personal property)

Carry out to give effect to the settlor’s intentions, as long as lawful, not contrary to public policy, and possible to achieve.

Court may reform a trust to conform to the settlor’s intent when affected by mistake of law or fact.

Spendthrift provisions are valid and enforceable; they usually prevent creditors from satisfying beneficiary’s debt unless 1) child support, 2) provided services under the trust, or 3) government.

Can only satisfy debt out of distributions that are due.

Unless a trust states it is irrevocable, the trust is revocable. During the lifetime of the settlor, the property of a revocable trust is subject to the claim’s of settlor’s creditors.

Question 16

Charitable Trust

Answer 16

for the relief of poverty, the advancement of education or religion, the promotion of health, scientific, literary,
benevolent, governmental, or municipal purposes, any purpose described in section 501(c)(3) of the internal revenue code or any other purposes the achievement of which is beneficial to the community

Question 17

Change in Custody

Answer 17

In order to be entitled to a hearing to amend a custody agreement, the movant must demonstrate proper cause or a change in circumstances. Normal life changes are not sufficient. The changes must have a significant effect on the child’s life.

An established custodial environment occurs when the child looks to the parent for guidance, discipline, necessities of life, and parent comfort. If there is an established custodial environment, then the movant must demonstrate by clear and convincing evidence a change in custody is warranted. If there is not an established custodial environment, then the burden of proof is preponderance of evidence.

There are 12 best interest of child factors the court looks at to determine a change in custody. The facts supporting a motion to change custody must relate to one best interest of child factor.

1) love, affection
2) capacity to provide love, affection, guidance
3) capacity to provide material items
4) length of time in envt
5) permanence of family unit
6) moral fitness of the parties
7) mental and physical health of parties
8) home, school, community record
9) reasonable preference of child - age not determinative, judge discretion to determine weight. Must interview upon request.
10) willingness and ability of the parties to foster relationship with other parent
11) domestic violence
12) any other factor

Question 18

Parenting Time

Answer 18

Normal life changes warrant a hearing where the best interest of the child is considered in determining modifications.

Question 19

Foreclosure by Advertisement

Answer 19

The following four requirements must be satisfied:

1) Default
2) Not an active action or proceeding to recover debt secured by the mortgage unless discontinued or unsatisfied
3) Power of sale clause has been properly recorded
4) Foreclosing party is owner or interested party of secured mortgage

Notice
Published at least once per week for 4 consecutive weeks in newspaper where property is situated
Notice of sale must be conspicuous place on property within 15 days of the first published notice
Public sale will be held in circuit court where property is located as designated by mortgage document or county sheriff to the highest bidder.
Sheriff deed conveys voidable equitable titled

Statutory right to redeem the property within 6 months from the sale date by paying the specified redemption amount.

After the six-month redemption period, person entitled to possession may file summary proceedings when a person continues in possession of the premises.

Question 20

Marital v Separate Property

Answer 20

Separate - those owned prior to marriage, inheritance, or gift unless ex-spouse contributed to the acquisition, improvement, or accumulation of the property OR the aware of marital assets is insufficient for the suitable support and maintenance of ex-spouse and any children in their care.

Marital Property is subject to equitable division (does not mean equal).

1) contributions of parties to the marital estate
2) health
3) age
4) prior conduct/fault
5) equity
6) life status
7) earning ability
8) necessities and circumstances
9) duration of marriage

Question 21

Spousal Support

Answer 21

1) work, ability
2) health
3) age
3) length of marriage
4) equity
5) ability to pay
6) present situation
7) present necessities and circumstances
8) past relations and conduct
9) past standard of living
10) property, source and amount awarded

Question 22

Conveyances

Answer 22

Tenancy by entirety - to right to convey unless death or divorce
Joint tenancy with rights of survivorship
Tenancy in common

Question 23

Preliminary injunction

Answer 23

Under Michigan law, injunctive relief is an extraordinary remedy that issues only when justice requires, there is no adequate remedy at law, and there exists a real and imminent danger of irreparable injury

(1) the moving party made the required demonstration of irreparable harm,
(2) the harm to the moving party absent such an injunction outweighs the harm it would cause to the nonmoving party,
(3) the moving party showed that it is likely to prevail on the merits, and
(4) there will be harm to the public interest if an injunction is issued.

To establish irreparable injury, a plaintiff must demonstrate a noncompensable injury for which there is no legal measurement of damages or for which damages cannot be determined with a sufficient degree of certainty.

Question 24

Retaliatory Eviction

Answer 24

The burden of proving that a retaliatory termination does not exist falls on the plaintiff landlord where the defendant complained to a governmental authority about health or safety code violations within 90 days from the summary proceedings filing since such an occurrence creates a presumption that the termination action is retaliatory. By the same token, however, a presumption that a termination action is not retaliatory is established if no such governmental complaint of code violations against the landlord is filed within that 90-day window, and thus the burden of proof is borne by the defendant tenant to prove the retaliation defense.

Question 25

Term of Years

Month to Month

Tenancy at will

Answer 25

[A] tenancy for a fixed term of years pursuant to a lease is ordinarily terminated on the expiration of the term of the tenancy as fixed by the lease. Thus, a tenant’s right to possession of leased premises expires or terminates pursuant to the lease absent the securing of an extension.

1 month written notice

an at will tenancy generally “may be terminated by either party by giving 1 month’s notice to the other party

Question 26

Michigan Summary Proceedings Act

Answer 26

Nonpayment of rent
A notice to quit may be served to a tenant for nonpayment of rent. The tenant must either pay the rent due or vacate the premises within 7 days from service.

Michigan Summary Proceedings Act (the “Act”)

Written notice demanding possession in order to terminate the tenancy.
If tenant does not vacate the property by the time the termination is effective, landlord may begin summary proceedings in the district court and obtain a judgment of possession against him.

If a judgment is issued and tenant still has not vacated after the date designated in the judgment (which must be at least 10 days from the judgment date), Landlord may apply to the court for an order of eviction (a/k/a writ of restitution) which would direct an authorized person (e.g. sheriff) to restore full possession of the premises to her

Question 27

Fixtures

Answer 27

Property is a fixture if

(1) it is annexed to the realty, whether the annexation is actual or constructive;
(2) its adaption or application to the realty being used is appropriate; and
(3) there is an intention to make the property a permanent accession to the realty.

Fixtures generally remain with the real property when an occupant vacates.

However, trade fixtures installed by a tenant which are considered personal property to which the tenant is entitled upon vacating. A trade fixture is merely a fixture annexed to leased realty by a lessee for business purposes.

Question 28

100 mile rule

Answer 28

improve quality of life of parents and child
other parent has utilized parenting time
purpose of modifying support obligations
Domestic violence
Degree to which schedule can be modified to foster parental relationship, likely parent will comply

Question 29

attractive nuisance

Answer 29

i. there is a dangerous artificial condition on the land that the premises possessor knows or should know of,
ii. children frequent the land and the premises possessor knows or should know of this,
iii. the children cannot appreciate the risk because of their youth,
iv. the utility to the premises possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to the children involved (burden/benefit analysis), and
v. the premises possessor fails to exercise reasonable care to eliminate the danger or protect the children.

Question 30

Common Scheme

Answer 30

(1) touch and concern the land, (2) intend to create a common scheme or plan to bind future successors, and (3) provide notice to the person that the covenant is being enforced against.

Question 31

Character Evidence Criminal v Civil

Answer 31

In a criminal case, character evidence is generally inadmissible in the prosecutor’s case in chief to prove that at a particular time, the defendant acted in conformity with his own character, i.e. that he had the propensity to partake in a certain action. However, evidence of other crimes or bad acts is admissible for other purposes, such as to prove (mnemonic = “MIMIC”) motive, intent, lack of mistake or accident, identity, or common scheme/plan.

In a civil case, character evidence is only admissible when character is an essential element of the case - negligent entrustment or hiring, defamation, or child custody.

Question 32

Misrepresentation

Answer 32

i. there is a material misrepresentation by the defendant,
ii. the defendant knew his statement was false or said it with reckless indifference,
iii. the defendant had the intent to induce reliance on the misrepresentation,
iv. there was justifiable reliance by the plaintiff, and
v. the plaintiff suffered pecuniary damage.

Question 33

Defamation

Answer 33

i. a defamatory statement about the plaintiff,
ii. an unprivileged publication of the statement to a third party,
iii. fault (public figure - malice; private figure - negligence), and
iv. damages - libel presumed DOUBLE CHECK

A communication is defamatory if tends to harm the reputation of another that would lower person estimation of community or deter third persons from associating or dealing with the person.

Generally, a parent is not liable for their children’s torts based on vicarious liability. However, parents could be directly liable for negligent supervision. The parents must be negligent by failing to exercise reasonable control to prevent their children from intentionally harming others if they knew or had reason to know of potential harm.

Question 34

Secured Transactions

Answer 34

Article 9 of the Uniform Commercial Code (UCC) governs secured transactions in personal property or goods.

Goods become collateral when subject to a security interest. A security interest is a legal claim on collateral which secures payment or performance of an obligation.

A security interest much attach to be enforceable. Attachment occurs where: value has been given; the debtor has rights in collateral; the debtor voluntarily grants the creditor security in the collateral; and the parties sign a security agreement reasonably describing the collateral.

A PMSI is a security interest taken in a specific good to secure the purchase price of that good which has superpriority if properly perfected. A PMSI in consumer goods can be given to a person other than the seller when the security interest is taken to secure the giving of value (money) to the debtor to enable him to purchase (acquire rights in) the collateral, if the debtor actually uses the money to acquire the collateral.

Security interests should be perfected via the filing of a financing statement with the appropriate governmental agency.

Priority will rest with the party who perfects or files first.

A PMSI in consumer goods (bought for personal, family, or household purposes) perfects automatically upon attachment.

PMSI equipment (not inventory, consumer goods, or farm products), file within 20 days.

PMSI inventory (goods held for sale/lease) send notice to conflicting security within 5 years prior to debtor receives possession.

The UCC allows security interests to be created in after acquired property, i.e., collateral the debtor does not own at the time of the agreement.

A lien creditor is a creditor who acquires a lien through the judicial process, such as via attachment or levy. A judgment lien creditor (JLC) obtains priority if its lien is established before a security interest is perfected. On the other hand, a JLC is subordinate to a secured creditor who perfects its security interest before the lien is acquired.

Question 35

14th amendment

Answer 35

No state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The right to a fair trial is a fundamental liberty secured by the 14th Amendment to the United States Constitution. An integral component in that fair trial is that the accused is presumed to be innocent. Courts must be vigilant in the administration of trials to guard against undermining that presumption.

Equal Protection Clause
Suspect classifications, which include race, ethnicity, national origin, or alienage are subject to strict scrutiny. Under the strict scrutiny test, the burden is on the government to show the law is necessary to achieve a compelling state interesting and uses the least restrictive means.

Gender, mental capacity or illegitimacy, which are subject to the intermediate scrutiny. The burden is on the government to show the regulation is substantially related to an important government interest.

Under the rational basis test, legislation is examined for whether it creates a classification scheme rationally related to a legitimate governmental purpose, and the legislation is presumed to be constitutional

Question 36

First Amendment - School

Answer 36

The First Amendment states in pertinent part:
“Congress shall make no law . . . abridging the freedom of speech. The First Amendment is made applicable to the states under the 14th Amendment.

Students do not shed their constitutional rights at the schoolhouse door, nor are a student’s free speech rights in the school setting co-extensive with adults’ free speech rights in a more general venue. Without question, greater restrictions on speech are
allowable in the student school setting.

Rules of conduct at approved social events or class trips are like those during “school” proper. School officials may take steps to safeguard those entrusted to their care from speech that can be reasonably regarded as encouraging illegal drug use.

Question 37

Negligence

Answer 37

(1) a duty owed from defendant to the plaintiff,
(2) breach of that duty,
(3) proximate cause, and
(4) damages.

Duty is defined as the legal obligation to conform to a specific standard of conduct in order to protect others from unreasonable risks of injury. Act as a
reasonably prudent person under the circumstances

Sudden Emergency
One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.

reasonably prudent person would have done under all the circumstances of the accident

the circumstances attending the accident must present a situation that is ‘unusual or unsuspected. Unusual - the circumstances must vary “from the everyday
routine An “unsuspected” hazard is one that “connotes a potential peril within the everyday movement. However, “it is essential that the potential peril had not been in clear view for any significant length of time, and was totally unexpected.

A sudden loss of consciousness can constitute a sudden emergency.

A person confronted by a sudden emergency is not guilty of negligence if he or she fails to adopt what subsequently and upon reflection may appear to have been a better method

Question 38

Nuisance

Answer 38

Private Nuisance is a non-trespassory invasion of private use and enjoyment of land

1) P has interest in the land;
2) D’s conduct caused substantial harm; AND
3) Interference was intentional and unreasonable OR negligent, reckless, ultrahazardous

Nuisance in fact - nuisance because of location
Nuisance per se - nuisance regardless of location

Public Nuisance unreasonable interference with public health, safety, or morals

A private citizen may file an action for a public nuisance against an actor where the individual can show he suffered a type of harm different from that of the general public.

Question 39

Premise Liability

Answer 39

a plaintiff must prove that 1(1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the plaintiff suffered damages, and (4) the defendant’s breach was a
proximate cause of the plaintiff’s damages.

The first step is to determine the duty owed by the
landowner to the person coming upon his land. There are three common-law categories in which visitors to one’s land fall: invitees,
licensees, and trespassers.

A customer is an invitee of the property owner. In general, a premises possessor owes a duty to an invitee to warn or make safe dangers the premise possessor knows of or should know of.

A premises possessor owes a duty to a licensee to warn or make safe concealed dangers the premise possessor knows of.

However, a landowner’s duty to remedy or warn does not generally encompass defects that are “open and obvious.” The possessor of land `owes no duty to protect or warn’ of dangers that are open and obvious because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid.” Whether a condition is open and obvious is judged by an objective standard by asking, “Would an average person of ordinary intelligence discover the danger and the risk it presented on casual inspection?”

liability may arise when special aspects of a condition make even an open and obvious risk unreasonable. When such special aspects exist, a premises possessor must take reasonable steps to protect an invitee from that unreasonable risk of harm. Under this limited exception, liability may be imposed only for an “unusual” open and obvious condition that is “unreasonably dangerous” because it “present[s] an extremely high risk of severe harm to an invitee” in circumstances where there is “no sensible reason for such an inordinate risk of severe harm to be presented.”

Question 40

Expert Testimony

Answer 40

The facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence. MI distinction

Skill
Knowledge 
Education
Experience
Training

Based on facts and data, generally accepted principles, and rationally related.

Question 41

Records of Regularly Conducted Activity.

Answer 41

A record, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the record, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”

In order to be self-authenticating, the record

(1) must be admissible under MRE 803(6); and
(2) accompanied by a sworn declaration that it was made at or near the time of the occurrence, kept in the course of the regularly conducted business activity and that it was the regular practice of the business activity to make the record.

In addition, before offering it into evidence, the offering party must have given the adverse party advance notice and made the record and sworn declaration available for inspection.

Question 42

Governmental Immunity

Answer 42

An employee of a governmental agency is immune from tort liability for an injury to a person or damage to property caused by an employee if all of the following are met:

1) the employee acted within the scope of his authority
2) the agency must be engaged in a governmental function
3) the employee’s conduct cannot “amount to gross negligence that is the proximate cause of the injury or damage.”

Gross negligence is defined as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.

Question 43

Evidence of Character and Conduct of Witness

Impeachment by Evidence of Conviction of Crime

Answer 43

(a)The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation,
(b) Specific instances of the conduct of a witness, for
the purpose of attacking or supporting the witness’ credibility

(a) evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross-examination, and
(1) the crime contained an element of dishonesty or false statement, or
(2) the crime contained an element of felony theft

probative value and prejudicial effect - similarity to charged offense

not more than 10 years old

Question 44

Free Exercise of Religion

Establishment Clause

Answer 44

The Religion Clauses of the First Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, provide that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The former clause is known as the Establishment Clause; the latter clause is known as the Free Exercise Clause.

The general rule is that the Free Exercise Clause is not violated where a law that is facially neutral regarding religion and of general applicability has an incidental burden on religious practice. However, where a law is not neutral or not of general application, it must satisfy the strict scrutiny standard: it must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.

Establishment
Content-neutral (lemon test)
1) does the state have a non-secular purpose?
2) is the primary effect of the law one that advances or inhibits religion?
3) Does the law foster excessive entanglement with religion?

Question 45

Commercial Speech

Answer 45

The First Amendment of the Unites States Constitution applies to the states through the Fourteenth amendment. It states the government “shall make no law…abridging the freedom of speech.”

The First Amendment and art I, § 5 both recognize that
commercial speech has more limited protections than does expressive speech.

Central Hudson Test
1. Does the speech concern a lawful activity (not misleading) within the protection of the First Amendment?
2. Is the government’s restriction justified by a substantial government interest?
If these two questions are answered in the affirmative, then the next two questions are asked:
3. Does the regulation directly advance the asserted government interest?
4. Is the regulation (narrowly tailored) more extensive than necessary to serve the government interest?

Question 46

4th Amendment

Answer 46

The 4th amendment protects against unreasonable searches and seizures. A defendant must have a legitimate expectation of privacy in the area searched based on the totality of the circumstances.

A person can consent to a search but it must be voluntary. The person consenting must have a reasonable authority over the area.

An exception to the warrant requirement is exigent circumstances. Probable cause that 1) a crime was recently committed on the premises, and 2) there is evidence of crime or perpetrators of crime. Actual emergency 1) prevent imminent destruction of evidence, 2) prevent harm to officers or others, OR 3) prevent escape of perpetrator.

Warrants must be issued upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A traffic stop for a suspected violation of law is a “seizure” of the occupants of the vehicle and, therefore, must be conducted in accordance with the Fourth Amendment.

Officers need only “reasonable suspicion” a reasonable person would believe, based on specific and articulable facts (not a mere hunch), that criminal activity is afoot.

Searches and seizures based on mistakes of fact and law can be reasonable.

Inevitable discovery: preponderance of evidence that evidence would be inevitably discovered by lawful means.

Independent source

taint disappeared

Question 47

5th Amendment

Answer 47

In Miranda v Arizona, the United States Supreme Court held that the 5th Amendment’s prohibition against “self-incrimination requires that the accused be given a series of warnings before being subjected to `custodial interrogation.’”

Where custodial interrogation is done in the absence of Miranda warnings, the accused’s statements may not be introduced into trial.

Miranda defines “‘custodial interrogation’ as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

The Supreme Court later explained that the sheer fact the accused was imprisoned or incarcerated is not determinative of whether Miranda custody exists.

First consider whether in light of the objective circumstances of interrogation a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.”

Relevant factors include: location of the questioning, duration, statements made during the interview, physical restraints, and the release of the interviewee at the end of the questioning.”

And second, whether the relevant environmental pressures are inherently coercive.

To invoke the right to counsel, a suspect must do so unambiguously and unequivocal. When a defendant invokes his right to counsel, the police must terminate their interrogation immediately and may not resume questioning until such counsel arrives. However, An ambiguous or equivocal statement regarding counsel, or no statement at all, does not require police to cease interrogation.

Question 48

6th Amendment Speedy Trial

Answer 48

The right to a speedy trial is guaranteed by the U.S. Constitution’s Sixth Amendment.

In Michigan, the right to a speedy trial is not triggered until the institution of formal
proceedings or defendant’s arrest followed by formal charges. The right to a speedy trial does not apply before a defendant is indicted, arrested or formally accused.

Michigan has adopted the four factor:

1. The length of the delay,
2. The reason for the delay,
3. The defendant’s assertion of the right, and
4. The prejudice to the defendant.

If the delay is 18 months or more, prejudice is presumed and the burden shifts to the prosecutor to show there is no prejudice to the defendant. The establishment of the presumption triggers an inquiry into the other factors to be considered in balancing the competing interests to determine whether the defendant has been deprived of the right to a speedy trial. If the delay is less than eighteen months, there is no need to inquire into the other balancing factors. Defendant has the burden to show prejudice was caused by the prosecution.

Question 49

Identification

Answer 49

A suspect has a due process right from being
subjected to “unnecessarily suggestive” identification procedures which are “conducive to
irreparable mistaken identification “

Identification factors to consider include:
(1) The opportunity of the witness to view the
suspect at the time of the crime;
(2) The witness’s degree of attention;
(3) The accuracy of the prior description by the witness;
(4) The level of certainty of the witness in the identification; and
(5) The length of time between the crime and the identification.

Question 50

Workers Comp

Answer 50

Employee - 20 factor IRS test, look at control

injury or disease - aggravation must be medically distinguishable

Mental disability is compensable if arise out of actual events of employment and reasonably grounded in fact or reality. Job related event contributed in a significant manner.

For an injury to come within the workers’ compensation statute, the injury must be an injury “arising out of and in the course of employment,” which is the Michigan’s Worker’s Disability Compensation Act’s coverage formula. The “arising out of” inquiry focuses on the risk triggering the injury and the “in the course of” inquiry looks to the time and location of the injury.

Michigan law recognizes employees can be expected to slightly deviate from work or even engage in “horseplay” at work.

An injury incurred in the pursuit of an activity the major purpose of which is social or recreational is not covered under this act.

Disability - cannot earn highest pre-injury wages

Question 51

PJ

Answer 51

Jurisdiction over the person may be established by way of general personal jurisdiction or specific (limited)
personal jurisdiction. A Michigan court can exercise general personal jurisdiction over a corporation if any of the following is true:
(1) domicile or the corporation is incorporated under Michigan law,
(2) consents to the court’s exercise of jurisdiction over it, or
(3) the corporation carries on . . . a continuous and systematic part of its general business within” Michigan.

When examining whether a Michigan court may exercise limited personal jurisdiction over a defendant, this Court employs a two-step analysis. First, this Court ascertains whether jurisdiction is authorized by Michigan’s long-arm statute.

1. transacts business
2. enters in a contract to perform services in MI
3. Commits tort in state

Second, this Court determines if the exercise of
jurisdiction is consistent with the requirements of the Due Process Clause of the Fourteenth Amendment.

1) D purposely availed itself of privilege of conducting activities in MI
2) cause of action arises from D’s activities in state
3) D activities are substantially connected w MI

A defendant has sufficient “minimum contacts” to support personal jurisdiction if the defendant “purposefully avails itself” of the privileges, benefits, and protections of the forum state, such that the defendant “should reasonably anticipate being hauled into court there.

Question 52

Claim Preclusion/Res judicata

Issue preclusion/Collateral Estoppel

Answer 52

Application of res judicata requires that

(1) Same claim (transaction or occurrence test)
(2) Same parties
(3) final judgment
(4) on the merits

Generally, for collateral estoppel to apply:

(1) Same issue
(2) Actually litigated
(3) Actually decided; and
(4) Necessary

Question 53

SMJ and Removal

Answer 53

Federal courts are courts of limited jurisdiction, meaning they can only hear actions authorized by the
United States Constitution or federal statutes. The two primary categories of federal subject matter
jurisdiction are when (1) there is a either a federal question asserted in a well-pleaded complaint
that seeks a remedy based on the federal question or (2) there is complete diversity of jurisdiction,
which requires that the action be between citizens of different states and the amount in controversy
exceeds $75,000. For “complete diversity” to exist, no plaintiff can be a citizen of the same state of any defendant. When determining an individual’s citizenship, a court will look to the person’s domicile at
the time the action was filed. A person can have only one domicile for purposes of diversity
jurisdiction, and a previous domicile cannot be lost until another is adequately established. Establishment of a new domicile, for diversity jurisdiction purposes, is determined by two factors:
(1) residence in the new domicile, and
(2) intention to remain there.

Therefore, complete diversity of citizenship must exist both at the time that the case is commenced and at the time that the notice of removal is filed.

In addition to complete diversity, removal based on
diversity also requires that no defendant be a citizen of the state where the original state action was filed.

Fraudulent joinder is a judicially created doctrine
that provides an exception to the requirement of complete diversity.

When an action is removed from state court, a federal court must consider whether it has subject matter jurisdiction. If a federal district court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.

The burden of establishing jurisdiction rests with the defendant as the party removing the case and asserting federal jurisdiction.

Question 54

Summary Disposition

Answer 54

The trial court must consider evidence, in the light most favorable to the party opposing the motion, and if the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.

A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable minds might differ. Courts are “liberal in finding genuine issues of material fact.” However, the trial court may only consider substantively admissible evidence in ruling on a motion for summary disposition.

An unsworn, unsigned affidavit may not be considered by the trial court on a motion for summary disposition.

the circuit court may not weigh the evidence or make
determinations of credibility when deciding a motion for summary disposition.

it is improper for a court to rely on inadmissible hearsay when determining whether a genuine issue of material fact exists.

Courts cannot reach out and consider evidence not on file or submitted by the parties.

A court may not make findings of fact; if the evidence before it is conflicting, summary disposition is improper.

An affidavit alone is sufficient to create a genuine issue of material fact

Question 55

Partnership

Answer 55

The burden of proof to show a partnership is on the party alleging the partnership.

Generally, the party alleging the partnership is required to prove that a partnership exists by a preponderance of the evidence. However, where the alleged partners are relatives, a heightened standard applies, and the party alleging the partnership is required to prove the existence of the partnership by clear and convincing evidence.

A partnership is an association of two or more persons to be the co-owners of a business for profit. In general, under this statute the primary question is “whether the parties intentionally acted as co-owners of a business for profit, and not on whether they consciously
intended to create the legal relationship of ‘partner-ship.’” The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business . . .” (emphasis added). However, no inference of partnership is drawn if the profits were received in payment “as a debt
by installments or otherwise.”

Question 56

Business Judgement Rule

Answer 56

This rule presumes that business decisions are made by disinterested and independent directors on an informed basis and with good faith belief that their decision will serve the best interest of the corporation and its shareholders.

Directors are required to discharge their duties:

(a) In good faith.
(b) With the care an ordinarily prudent person in a like position would exercise under similar circumstances.
(c) In a manner he or she reasonably believes to be in the best interests of the corporation

A director is entitled to rely on legal counsel, accountants, engineers, or other persons reasonably believed are within person’s profession or expert competence.

Question 57

Derivative Suit

Answer 57

A shareholder may commence or maintain a derivative suit against directors on behalf of the organization if the shareholder has:

1) Standing
was a shareholder of the corporation at the time of the act or omission complained of, continues to be a shareholder until the time of judgment.

2) Adequacy
fairly and adequately represents the interests of the corporation in enforcing the right of the corporation,

3) Demand
a derivative action may not be initiated until:
(1) a written demand has been made upon the corporation to take suitable action, and
(2) 90 days have passed “from the date the demand was made unless the shareholder has earlier been notified that the demand has been rejected by the corporation or unless irreparable injury to the corporation would result by waiting. for the expiration of the 90-day period.

A claim can be brought in the name of the individual if the shareholder “can show a violation of a duty owed directly to the individual that is independent of the corporation.”

Question 58

Shareholder Petition for Records

Answer 58

Any shareholder of record, in person or by attorney or other agent, shall have the right to inspect for any proper purpose the corporation’s stock ledger, a list of its shareholders, and its other books and records.

Under the statute, a shareholder is required to give the corporation a written demand, describing with reasonable particularity the shareholder’s purpose, the records sought, and that the records sought are directly connected with the purpose. A proper purpose under the statute is defined as a purpose reasonably related to such person’s interest as a shareholder.

The party bearing the burden of proof changes depending upon the type of documents sought by the shareholder. Assuming that the written demand requirements have otherwise been met:
· If the shareholder seeks to inspect the stock ledger or list of shareholders, the burden of proof is on the corporation to show that the demand was made for an improper purpose or that the records sought are not directly connected with the shareholder’s stated purpose.
· If the shareholder seeks records other than the stock ledger or list of shareholders, the burden is on the shareholder to establish that the inspection is for a proper purpose and that the documents are directly connected with the stated purpose.

Question 59

Independent medical examinations

Answer 59

The new Michigan No-Fault law imposes the following rules for IMEs of car accident victims by insurance company-hired IME doctors:

(1) The IME doctors must be licensed in Michigan;
(2) If care is being provided to the person to be examined by a specialist, the examining IME physician must specialize in the same specialty as the physician providing the care, and if the physician providing the care is board certified in the specialty, the examining IME physician must be board certified in that specialty; (3) During the year before an IME, the IME doctor must have devoted a majority of professional time to clinical practice of medicine/specialty or teaching in an accredited medical school.

Question 60

No-fault serious impairment of body function

Answer 60

The No-Fault Act generally bars recovery of noneconomic damages unless the injured person suffered death, permanent disfigurement, or a serious impairment of body function. Codification of McCormick.

A “serious impairment of body function” as an “impairment” that: “is objectively manifested, meaning it is observable or perceivable from actual symptoms or conditions by someone other than the injured person”

is an impairment of an important body function, affects the injured person’s general ability to lead his or her normal life.

There is no temporal requirement for how long an impairment must last. This examination is inherently fact and circumstance specific to each injured person, must be conducted on a case-by-case basis, and requires comparison of the injured person’s life before and after the incident.”

Question 61

Personal Injury Protection

Answer 61

No longer will all drivers be required by law to purchase unlimited No-Fault Michigan PIP benefits. For auto insurance policies issued or renewed after July 1, 2020, drivers now will have the choice of the following No-Fault medical benefit coverage levels:

• Opt-out: Medicare A&B required
• Healthcare exclusion- available to individuals with a “qualified’ health plan. A qualified health plan must not exclude or limit coverage for auto-accident related injuries and must not contain a deductible higher than $6,000
• $50,000 (if a driver is enrolled in Medicaid)
• $250,000;
• $500,000;
• Unlimited

As of July 1, 2020, a person injured in a car accident can sue for excess medical costs and economic expenses.

Question 62

Felony Murder - Duress Defense

Answer 62

Under Michigan’s murder statute, second-degree murder will be elevated to first-degree murder if the death occurred during one of the enumerated felonies contained in MCL 750.316(1)(b).

Duress: Regarding duress, the Court noted it was an affirmative defense at common law. As such, a defendant has the burden to produce some evidence that would allow a jury to conclude four things:

1. imminent threatening conduct would make reasonable person fear death or grievous bodily harm, for which the defendant was not responsible;
2. the conduct actually caused the defendant to fear death or grievous bodily harm;
3. the defendant was operating under the fear or duress at the time of the act; and,
4. the defendant committed an act to avoid the threatened harm

Due to duress, the defendant chose to commit a less serious offense.

A defendant may assert duress as an affirmative defense to felony murder if it is a defense to the underlying felony.

Question 63

Possession with Intent to Deliver

Answer 63

The elements of the offense are:

1. The defendant possessed a controlled substance, cocaine.
2. The defendant knew she possessed a controlled substance, cocaine.
3. The defendant intended to deliver the controlled substance to someone else.
4. The controlled substance that the defendant intended to deliver was in a mixture that weighed less than 50 grams.

Possession can be actual or constructive, single or joint.

Actual possession means physical dominion or physical custody of an item in hand or on the premises a person occupies.

Constructive possession is the right to exercise control of the drug coupled with the knowledge of its presence. Constructive possession exists when the totality of the circumstances indicates a sufficient nexus between the defendant and the contraband, which is more than the presence of a person at a location where drugs are found.

Possession may be established by direct or circumstantial evidence and reasonable inferences from the evidence.

Question 64

Shareholder Agreement

Answer 64

Two or more shareholders may enter into a signed written agreement to vote.

Question 65

Confrontation Clause

Answer 65

The Confrontation Clause of the Sixth Amendment provides the accused the right to be confronted with the witnesses against them. The Fourteenth Amendment binds the states.

The Sixth Amendment is limited to testimonial statements which are for the primary purpose is to prove past events potentially relevant to later criminal prosecution. But statements are not testimonial if the primary purpose is to enable police to address an ongoing emergency.

A court may consider

1) whether an ongoing emergency actually exists,
2) formality of encounter,
3) statements and actions of interrogator and declarant, and
4) any other relevant factors.

Question 66

Hearsay

Answer 66

Hearsay is an out of court statement admitted for the truth of the matter asserted.

Hearsay is inadmissible unless an exception applies.

A statement is not hearsay if it is offered against a party and is the party’s own statement.

Excited Utterance. Statement relating to a startling event while under the stress of excitement.

Present sense impression. Statement describing event while declarant was perceiving.

Relevance. Evidence having a tendency to make the existence of any fact that is of consequence more or less probable.

Probative value is not substantially outweighed by unfair prejudice, confuse issues, mislead jury, waste time.

Offer of Settlement
Evidence of an offer to furnish consideration to compromise a claim that is disputed as to either amount or validity is inadmissible.

Subsequent Remedial Measures
if made previously would have made the event less likely to have occurred unless for another purpose - offered to show ownership, control, or feasibility of the measure

Photographs
A person familiar with the scene must testify on the basis of personal knowledge that the photograph is an accurate representation.

Question 67

Race-notice statute

Answer 67

Race notice statutes protect subsequent grantees who are bona fide purchase for value, without notice, and are first to record. Notice can be actual or constructive (inquiry or record).

Question 68

Class Action

Answer 68

Commonality, adequacy, numerosity, typicality, superiority.

Numerosity - no particular number but must establish a sizable number of class members have suffered an actual injury. 40+

Commonality - issues of fact and law common to the class are predominate, plaintiffs have suffered the same injury

Typicality - claims have the same essential characteristics

Adequately - representatives can fairly and adequately represent plaintiffs and counsel is qualified

Superiority - must convenient way to decide

Question 69

Discovery - Initial Disclosure

Answer 69

1) factual basis for claims or defenses
2) legal theory of claims or defenses
3) name, and if known, addresses of anyone that might have relevant information that will support claim
4) Copy of documents or ESI in possession that will support claim
5) Description of documents or ESI that others may have in their possession that will support claim
6) Computation of Damages
7) Insurance information
8) Anticipated areas of expert testimony

Question 70

Revocation of Acceptance

Answer 70

Article II of the UCC applies to transactions in goods of $500 ($1,000 in MI) or more.

Goods are all things which are movable and tangible at the time of sale. Generally, a buyer has three options with respect to transactions in goods under the UCC. The buyer may accept the goods; reject the goods; or revoke an acceptance of the goods. There must be a substantial impairment to revoke acceptance of goods and it must be within a reasonable time after they discovered or should have discovered the nonconformity.

Express warranties can be created by the seller of goods by any expression of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain.

Question 71

Self-defense

Answer 71

(1) a defendant honestly and reasonably believed that
he was in imminent danger;
(2) necessary to prevent death or serious bodily harm; and
(3) generally speaking, the defendant was not the
initial aggressor.

CL - retreat is required.
MI - stand your ground (anywhere legal right to be)

Moreover, under Michigan statutory self-defense, an accused may not be engaged in the commission of a crime.

Question 72

Dormant Commerce Clause

Answer 72

Congress has the authority to regulate interstate commerce. In the absence of congressional legislation of the particular subject, a state retains its authority under its general police powers to regulate local aspects of interstate commerce if the regulation does not discriminate against interstate commerce.

When a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interest over out-of-state
interest, the statute is generally struck down without further inquiry. However, where a statute evenhandedly concerns a legitimate
local interest and has only an indirect effect on interstate commerce, the statute will be upheld
unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit.

Question 73

Negotiable Instrument

Holder in due course

Payee v Bank

Answer 73

Negotiable instrument is a unconditional promise to pay a fixed amount when 1) payable to bearer, 2) on demand, 3) no conditions on face.

Holder in due course takes free of any defenses when 1) value, 2) in good faith, 3) without notice of defects. Holder must exercise ordinary care.

1) instrument was in their possession before being stolen, 2) terms of the instrument, and 3) they are the payee

Question 74

Tax and Spend

Answer 74

(a) spending serves the general welfare, (b) the condition is unambiguous, (c) the condition relates to a legitimate federal interest, (d) the condition is not unduly coercive, and (e) the condition does not require states to violate individual liberties.

Question 75

Kidknapping/False Imprisonment

Answer 75

kidnapping is the unlawful confinement or restraint of another that involves either moving or concealing the victim.

Question 76

False Pretenses

Answer 76

i. The defendant intentionally
ii. makes a false representation of
iii. a material past or present fact
iv. to obtain title to the property
v. with the intent to defraud.