Essay Review Flashcards
An expert may not state/express an opinion as to whether the accused did or did not have the mental state at issue when what??
Criminal case when defendant’s mental state constitutes an element of the crime or defense
California is a community property state. All assets acquiring during marriage are presumptively community property.
All property acquired before or after marriage or after permanent separation, or by gift, devise, or bequest is presumed to be separate property
Quasi-Martial Property (QMP) is property acquired during a void or voidable marriage, which would have been CP or QCP if the marriage had not been void or voidable
Prior to 1975, title in Wife’s name alone would indicate SP
Here, after 1975, title in just the wife’s name alone would not change QMP to SP
Transmutations are agreements between spouses to change the character of an asset
1/1/1985
Before 1/1/1985: transmutations could be oral, written or inferred from conduct of parties
Post 1/1/1985: need to be a signed declaration, in writing
An inheritance is presumed to be SP unless it appears the funds were commingled with the community funds (or QMP)
Generally, an offer to plead guilty to a crime and all related statements made during plea negotiations, are NOT admissible to prove that a criminal D is guilty.
CA exception
Under CA Prop 8, such statements MAY come in
The duty of loyalty requires a lawyer to act in the client’s best interests.
Under both ABA and CA rules, a conflict of interest exists if there is a significant risk that the representation of a client will be materially limited by the lawyer’s loyalty / responsibility to another client or former client
When there is a conflict, the lawyer may ONLY represent the client if
(1) the lawyer reasonably believes there will not be an adverse effect AND
(2) the client consents in writing after consultation
Friends are in the class action, which means Lawyer may have to depose or cross examine a friend, which would make adequate, competent representation of client very difficult
Contingency fees must be in writing, clearly state the method for calculating the fee, and identify if litigation expenses are to be deducted before or after the calculation of the contingency fee.
Fees must be reasonable, evaluated based on multiple factors:
— skill of attorney
— time the matter will take
— case complexity
— standard fees charged in related matters and circumstances
Under the ABA, a lawyer has an ongoing duty to report ethical violations of another lawyer.
The CALIFORNIA rule permits, but does not require, the reporting of ethical violations.
A lawyer has duty of fair dealing to public and third parties.
In CA, a lawyer is prohibited from threatening to present criminal, administrative, or disciplinary charges in order to obtain an unfair advantage in a civil dispute.
A reciprocal referral agreement between lawyers is permissible if not exclusive AND client is informed of the agreement
Per ABA rules, a referral fee or gift is not permitted
Per CA laws, a referral gift is permitted if it was not given as consideration.
Division of fees between lawyers who are not in the same firm may be made under ABA laws ONLY if: (1) division is proportionate, (2) the client consents in writing, and (3) the total fee is reasonable.
Division of fees between lawyers who are not in the same firm may be made under CA rules, ONLY IF:
(1) there’s a written agreement between lawyers to divide the fee, (2) client consents in writing after full written disclosure that the fees will be divided along with identity of lawyers and division terms, and (3) total fee is not increased by the division.
In order to be valid, an attested will needs to meet these formation requirements
(1) will must be in writing
(2) must be written, dated and signed by the testator
(3) signed by testator in the presence of two disinterested witnesses
(4) the two disinterested witnesses need to sign the will in testator’s lifetime and
(5) the witnesses need to understand that they’re signing a will.
Testator needs to know the assets contained in her asset and the natural bounty of her estate.
A holographic will is handwritten that does not need to be dated to be effective . It needs to be signed by testator anywhere on the document, but unlike an attested will, there’s no requirement that there be witnesses.
A will can be revoked by either (1) physical revocation OR (2) a later testamentary instrument.
Physical revocation occurs when there’s a burning, tearing, crossing out, or obliteration of the physical will document.
Even if there are multiple copies, the physical revocation of one copy will create a presumption that there has been a revocation of the will. (Even if other copies are untouched)
When a testator doesn’t devise her entire estate away using her will (aka there are some pieces of $$ or property that aren’t accounted for in the will), then the remaining property goes to her heirs via intestate succession
Under intestate succession, a testator’s spouse is entitled to all of testator’s separate property if testator didn’t leave behind any parents or issue, 1/2 of testator’s separate property if the testator left behind one child, and 1/3 of the testator’s SP if the testator left behind more than one child.
Evidence is logically relevant if it tends to prove or disprove a material fact.
Evidence is legally relevant if its probative value is not substantially outweighed by risk of unfair prejudice.
Traditionally, only completely mutual issue preclusion was allowed, meaning that the two cases had to involve the same parties. Under the modern view, nonmutual issue preclusion (either defensive where a D form a previous action can use a previous action to defendant against a new P, or offensive where a new P is attacking a D from a prior action).
When there’s mutuality (same exact) parties and no differences/new people, a nonmutual analysis does not apply.
Worth noting that CA allows for offensive nonmutual issue preclusion.
Employers are generally liable for the torts of their employees conducted within the scope of their employed duties.
On the other hand, a party is not generally liable for the torts of independent contracts, unless it concerns a non-delegable duty.
Court will need to determine whether Cook’s is more similar to an employee or an independent contracts. The principal factor a court considers in determining whether a party is an independent contractor or an employee is whether, and the degree to which, that party was subject to the control of the employer. The more control, the more likely that party is to be an employee.
Miranda only applies to interrogations. Interrogations include express questioning by police officers as well as any statements or conduct by the police that may reasonably lead to inculpatory statements by a defendant. However, statements that are spontaneous or voluntary by the defendant are not obtained in violation of Miranda.
In analyzing whether a defendant properly invoked his Miranda rights, the critical question is whether he did so unequivocally. To assert his right to maintain silent, the defendant must unequivocally state that he wishes to maintain silent; even sitting there in silence for long periods is insufficient to expressly invoke.
A defendant has the right to counsel at all critical stages of a criminal case. The Sixth Amendment right to counsel attaches when a defendant is formally charged with a crime.
Pre-charge lineup or photo array before being formally charged does not give defendant constitutional right to attorney
Post-indictment photo array = NO right to counsel bc D is not physically present
Post-indictment line up = YES right to counsel
The Fourth Amendment protects the right to be free from unreasonable searches and seizures.
Warrantless searches and seizures are presumed to be unreasonable unless an exception to the warrant requirement applies.
What has reasonable right to privacy:
— home
— electronic contents of cell phone
Where is there NO reasonable expectation to privacy:
— trash cans
— aerial view of some illegal activity
— plain view through a window (standing from the sidewalk)
A will is validly executed according to CA if:
(1) testator has testamentary capacity, (2) testator has present testamentary intent, and (3) the will complies with applicable formalities
Testator has testamentary capacity if: (1) testator was at least 18 years or older, (2) testator understands the nature and situation of her property, (3) testator understands the natural objects of her bounty, and (4) testator understands the significance and planning of her testamentary act
A pretermitted child is one who was born after the execution of the last testamentary instrument and is not mentioned or provided for in the testamentary instrument.
A pretermitted child receives an interstate share of her parent estate UNLESS:
(1) the omission is intentional and appears on the face of the instrument,
(2) the child is provided for outside of the testamentary instrument, or
(3) the testator had other children at the time of execution and transferred substantially all of the assets to the child’s other parent
Right to vote is a fundamental constitutional right
States may impose reasonable residency requirements of a short duration (1-2 months) without violating fundamental right to vote.
Is D liable for appropriation of P’s identity and likeness if name and likeness only used for commercial advantage without P’s consent? What else is needed?
The wrongful use of P’s identity or likeness MUST be in connection with promotion of product or service. (E.g. using actor’s image to market her own brand)
The fact that D derived economic benefit alone does not constitute a violation. (E.g. selling picture to tabloid)
When a lawyer is hired to represent a corporation or organization, the lawyer’s fiduciary duties are to the organization and not to the individual members, directors, or officers.
A lawyer has a duty to act on the best interests of the organization and can, therefore, not engage in conduct which would benefit any individual or group of individuals at the expense of the organization
When a lawyer represents an org, and learns of conduct that could materially harm the organization, the lawyer’s fiduciary duties has a duty to report up.
Under the ABA, lawyer has to first report the individual’s conduct up to a higher authority int he company. If the board does not do anything to remedy the harm, the lawyer has to report to a relevant authority outside of the corporation.
Under CA law, a lawyer has the duty to first report up the chain to the board of directors. If the board fails to act, then lawyer may not report out but rather should seek withdrawal.
Under ABA, there is no writing requirement for the representation of a client unless it’s a contingency case.
CA rule also does not require written retainer agreements for representation up to $1,000, a corporate client, prior relationships, or in the case of an emergency.
Under both the ABA rules and CA rules, an attorney has a duty of loyalty to her client.
This duty includes an obligation to avoid conflicts of interest between: current clients, current and former clients, clients and third parties, clients and the attorney herself, and organizational conflicts when representing an entity such as a corporation.
A conflict of interest exists if there is a significant risk that the representation of a client will be materially limited by the lawyer’s loyalty / responsibility to another client or former client
Under the ABA, informed consent may be oral and confirmed in writing
Under CA, there must be written informed consent
Under both ABA and CA rules, an attorney owes a duty of candor to the tribunal.
This means attorney may not knowingly offer false evidence and must correct any material misstatements or misrepresentations on the record.
Here, it’s possible Peg’s claim about the affair is true but it does not appear that Mary has investigated the truth of this claim.
Some courts interpret the duty of candor to the tribunal to include properly investigating the factual basis for any assertions. If so, Mary would need to look into the validity of Peg’s assertion before bringing it up in court in order to comply with her duty of candor to the tribunal.
Under both rules, an attorney has a duty to communicate with the client.
This includes keeping the client apprised of any developments in the case, letting them know about settlement offers, and generally consulting with the client and keeping in regular contact.
The client and lawyer have different spheres within the representation— lawyer has control to make decisions regarding the legal strategy of the case, but client has complete authority to make decisions substantively related to the rights under the case (e.g. acceptance of settlement offers, plea deals, or demand for a jury trial).
Under the ABA rules, an attorney MUST withdraw from representation if (1) continuing representation would result in a violation of ethical rules or law, (2) the attorney’s physical or mental condition materially impairs their ability to represent the client, (3) the attorney is discharged by the client, or (4) under CA rules, if the attorney knows client’s claim lacks probably cause and is solely intended to harass or harm another party.
An attorney MAY withdraw when (1) the client persists in or has already used the attorney’s services for crime or fraud, (2) the client fails to fulfill a substantial obligation to the attorney such as paying fees, (3) client insists on a course of action the attorney finds morally repugnant.
Any commercial supplier in the chain of distribution may be subject to strict products liability if (1) product contained a defect when it left that commercial supplier’s control and (2) defect caused plaintiff’s harm
Strict liability is imposed even when the commercial supplier did not directly cause or was unaware of the product defect
Under ABA, lawyers are under a duty to report misconduct of other lawyers— especially as it pertains to truthfulness/honesty/lawyer’s ability to practice law.
Under CA rules, there is no such duty ro report misconduct of others.
Duty of Care / Competence
Under ABA rules, a lawyer is required to represent clients with the necessary legal knowledge, skill, preparation and thoroughness reasonably expected for competent representation.
Under CA rules, a lawyer must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services competently. Unless a attorney can remedy this lack of competence be associating with or consulting another qualified lawyer with the appropriate skills or acquiring the necessary skills herself, she should withdraw from the representation.
Under both CA and ABA rules, a lawyer must act with diligence and dedication in the best interests of their client.
A lawyer must not intentionally, recklessly, with gross negligence or repeatedly fail to provide diligent representation.
Duty of Confidentiality
Lawyers have a fundamental duty of confidentiality to their clients under both the ABA and CA rules.
Under ABA, an attorney must not disclose information obtained during the course of representation unless the client gives consent. CA rules impose an even strict standard, requiring a lawyer to “maintain inviolate the confidence and at every peril to himself to preserve the client’s secrets.”
There are certain, limited exceptions where disclosure is permitted: (1) client makes a claim against lawyer, (2) court orders disclosure, or (3) lawyer learns of imminent threat of death/serious bodily injury
Under both ABA and CA rules, fee sharing with non-lawyers is NOT allowed.
Under ABA rules, a lawyer shall not give anything of value to person for recommending the lawyer’s services unless it’s a qualified referral service.
Under CA rules, a lawyer CAN make a gift for a past recommendation if (1) the gift was reasonable and (2) not offered or given as consideration.
Contingency fee agreements are generally permitted, but they must be in writing, signed by the client, and clearly indicate how the fee is calculated.
Contingency fees are prohibited for criminal cases or in domestic relations cases for policy reasons.
Under CA rules, threatening with administrative action or any other civil action or prosecution to gain advantage in current litigation is prohibited.
Under ABA, there are no such rules.
An attorney-client relationship begins when the client reasonably believes that a relationship has begun (which could be before retainer agreement is signed).
Under ABA, attorney-client relationship lasts forever.
Under CA, the relationship terminates once the client has died and his estate has been settled.
Under both ABA and CA rules, a lawyer may not assist another in the unauthorized practice of law. This rule extends to the hiring and employment of disbarred attorneys.
A lawyer may employ a disbarred lawyer as a clerk or paralegal to assist in certain activities that do not involve the practice of law.
For example, a disbarred attorney can conduct research, draft documents reviewed and supervised by the lawyer, conduct other administrative tasks like billing. The disbarred lawyer may NOT engage in counseling of the client, appear before any tribunal or communicate with the client concerning substantive matters.
In order to determine whether government action violates the Establishment clause, the court will apply the Lemon test.
The government must show that
(i) the action has a secular purpose,
(ii) that the action’s primary effect is not to advance or inhibit religion,
and (iii) there is not excessive entanglement between the government action and religion.
An otherwise unlawful search is permitted if the searched party voluntarily consented to the search.
The person need not have known that he was free to decline consent;
however, officers cannot utilize coercive methods in obtaining such consent or else it will not be deemed voluntary.
The obtaining of a warrant after a search has been performed does not provide immunity to the unlawful search carried out.
Nonetheless, whether Bert’s warrant was a valid one is important because, if the warrant was valid,
it could render the search harmless under the inevitable discovery doctrine, which provides that evidence that otherwise should be excluded can be
included where it would have been inevitably discovered by lawful means.
A prior statement of identification refers to a witness’s previous identification of a person (e.g. from a lineup or photo array).
Under FRE, a prior identification is not hearsay is (1) witness-declarant testifies at trial, (2) witness-declarant is subject to cross-examination about the statement, and (3) the statement was an identification of a person made after perceiving them.
Not admissible if witness does not testify at trial and cannot be cross-examined (confrontation clause issue)
Under CEC, prior statement of identification IS technically hearsay but admissible under an exception: (1) witness must testify at trial, (2) identification must have been made while crime was fresh in their mind, (3) witness must confirm that they made the identification and that it was true.
Direct tracing requires that the spouse show that the funds used from commingled account to purchase property came from a separate property deposit and community property funds were not used. Generally, a spouse can prove direct tracing by keeping conspicuous records of the deposits and credits of the account and their characterizations
The exhaustion method requires that the proponent spouse show that all community property funds were depleted at the time of the purchase, such that the only remaining funds to make the asset purchase was with separate property funds
Incidental damages are costs incurred while trying to remedy the breach. (E.g. shipping/storage costs)
Here, Buyer spent time and effort trying to contact Seller while Seller was away on vacation, find a new supplier for his maple topping needs.
Consequential damages are those other than expectation damages that stem from/are caused by the breach.
Here, Sam lost out on a 100k profit on the catering contract because he didn’t get the maple topping. But in order to recover consequential damages, the breaching party must have known about or could foresee the resulting/consequential damages.
In order to have a valid, enforceable agreement, there must be offer, acceptance, and consideration. An offer is an objective expression giving power of acceptance to the other party and an acceptance is the confirmation to be bound to the terms of the offer. There must be a meeting of the minds such that there’s mutual inducement of legal detriment. Bilateral contracts are promise for a promise while unilateral contracts are promise for performance.
At common law, the material terms required for a valid contract are: parties, price, quantity. The only requirement for a valid UCC contract is the quantity term as other terms like price can be filled in.
Under common law, parties to an agreement have to substantially perform their obligations under a contract. Material breaches excuse the non-breaching party from its obligation to perform.
But if a party substantially completes performance, it has fulfilled sufficiently to demand the non-breaching party’s action and minor failings are considered minor breaches where the non-breaching party is entitled to damages but will not be excused from performance.
The UCC requires perfect tender— perfect goods and perfect delivery. If the seller provides non-conforming goods, the buyer can reject the goods. If there’s still time under the contract, seller can resend conforming goods and not be in breach.
Compensatory damages are designed to put the party in the same position they would have been in absent the wrong.
In a fraud case, compensatory damages may be either ”out of pocket” losses (price paid minus actual value) or “benefit of the bargain” (promised benefit minus actual benefit).
Fraud plaintiffs are typically entitled to incidental/consequential damages that flow from the fraud.
Remedies:
— rescission
— replevin
— constructive trust
— compensatory/punitive
Rescission = equitable remedy that cancels the contract. Here, seller would have to return the $20 and buyer returns the baseball card.
Replevin = requests the return of personal property. Enforceable against fraudster but not against a third party BFP without notice of the fraud
Constructive trust = equitable remedy. If defendant would be unjustly enriched by their misconduct, court may impose an equitable trust on the fruits of that misconduct, which transfers possession of the money/property to the plaintiff.
Under ABA, fee must not be unreasonable. Under CA, fee must not be unconscionable
Under ABA, a lawyer may not solicit or procure gifts from clients
CA only allows lawyer to accept a gift from a client if it’s reasonable, not consideration, and if client gets approval from an independent lawyer that the gift is reasonable.
Under the ABA, an attorney is prohibited from offering in court their personal opinion as to the guilt or innocence of their client.
But under CA rules, there is no such prohibition, provided that the opinion is genuine and legally supportable.
Article IV privileges and immunities clause prohibits state discrimination against nonresident citizens.
Prohibits states from discriminating against citizens of other states by denying them a right of state citizenship (including the right to practice a commercial trade or business). No market participant exception (like in DCC)
14A national citizenship protections applies when a state abridges a right of national citizenship of its OWN citizens, as opposed to a right of state citizenship of OTHER states’ citizens.
This rarely serves as a basis to declare a statute unconstitutional (largely limited to right to interstate travel)
Expressive conduct (symbolic speech like picketing, leafleting)
— regulation is constitution if (1) it furthers an important gov interest, (2) unrelated to suppression of ideas, and (3) burden on speech is no greater than necessary, aka narrowly tailored
Laws that can be challenged as “facially invalid”
— overbreadth: restricts a substantial amount of protected speech. Chilling effect on protected speech
— vagueness: if fails to provide a person of ordinary intelligence with fair notice of what is prohibited.
Prior restraints
— government action like an injunction that prohibits speech before it occurs.
The 11A of the US Constitution has been interpreted by SCOTUS to provide state governments with immunity from suit by private citizens or foreign countries suing in federal court.
There are a number of exceptions to the 11A bar on private individuals: including when State waives its sovereign immunity, when suit brought against state officers in their individual or official capacity.
All debts and liabilities of both spouses before and during the marriage are considered CP. All debts and liabilities by the spouses after divorce or permanent separation are that spouse’s SP.
An exception exists if the debt or liability is for “necessities of life” such as food or medical expenses. Q
Despite the general rule that debts incurred post-separation are the SP debt of the debtor, there is an exception for “necessaries of life”
A landlord owes a duty to deliver possession of the premises to the tenant.
Modernly, the landlord is required to deliver actual possession of the property and is required to remove any holdover tenants prior to the commencement of the lease.
Legal Remedies:
Compensatory Damages
— Contract damages aim to put the non-breaching party in the position they would have been in if the contract had been performed
— Tort damages is to compensate for actual harm suffered
Equitable Remedies
— Specific performance is available when damages are inadequate and the subject matter is unique
— Injunctions require a party to do or refrain from doing something: (1) TRO is short-term relief granted when immediate harm is threatened, (2) Preliminary injunction maintains the status quo while a case is pending
A party is considered necessary if their presence is: (1) required for a just adjudication, meaning that complete relief cannot be granted in their absence, (2) their absence creates risk of inconsistent obligations, (3) whether the absence party will be prejudiced.
If the court determines that the party is necessary, it must decide whether joinder is feasible, meaning adding them would not destory court’s SMJ and there is PJ over the additional party.
Joint tortfeasors are not considered necessary parties, as plaintiffs can sue any one of them and seek full recovery under joint and several liability. But then the defendant in the case can sue the absent party for contribution.
Parties are entitled to discovery of any non-privileged material that is (1) relevant to the claim and (2) proportional to the needs of the case.
Discoverable information is broader than admissible information — scope of discovery extends to all non-privileged information relevant to the case or reasonably calculated to lead to admissible evidence.
If a party fails to produce discoverable material, the opposing party may file a motion to compel, but must first meet and confer with the opposing party to attempt resolution before seeking court intervention
Work product doctrine protects materials prepared in anticipation of litigation.
(1) Ordinary work product includes factual information and may be discoverable if the requesting party shows substantial need and undue hardship in obtaining the information elsewhere and
(2) Opinion work product consists of attorney’s mental impressions, strategies, legal theories and is absolutely protected from disclosure.
Symbolic speech is conduct intended to convey a particular message
Is protected from regulation unless the government can show (1) an important government interest unrelated to speech, (2) the restriction is narrowly tailored
Corporate directors and officers owe a duty of care to act in good faith and in the best interest of the corporation.
Under BJR, courts presume that directors act informed, in good faith, and with rational basis unless plaintiffs show gross negligence or bad faith.
Directors and officers owe a duty of loyalty to the corporation with includes:
(1) Avoid self-dealing: transactions where the director has a personal interest. Unless they are approved by disinterested directors/shareholders
(2) Not usurping corporate opportunities: directors cannot personally take a business opportunity that is within corporation line of business without first offering it to corporation.
Exceptions to the duty of confidentiality in attorney-client relationship
The privilege is waived when: (1) client seeks legal advice to commit a crime or fraud, (2) the communication is relevant to a legal malpractice action, or (3) the privilege has been waived by the client.
Personal jurisdiction can be established through traditional bases: the defendant is domiciled in the forum state, consents to the jurisdiction, or is physically present in the state when served with process.
A state’s long-arm statute allows courts to exercise jurisdiction over nonresident defendants if they have minimum contacts with the forum state.
Minimum contacts test considers whether the defendant purposely availed themselves of the forum state, whether the claim arises from defendant’s contacts within the state, and whether it’s fair and reasonable to exercise jurisdiction over the defendant so as to not violate notions of fair play and substantial justice.
Landowners owe a duty of care to people on their property (non-delegable duty)
Invitees (business visitors) — owed the highest duty of reasonable care. To inspect for both hidden and known dangers, warn, and make premises safe.
Licensees (social guests) — owed a duty to warn of known dangers
Trespassers — owed a duty to refrain from willful misconduct / don’t set traps
A joint tenancy requires the four unities— possession, time, interest, title.
A joint tenancy is severed when one JT conveys their interest to a third party, creating a tenancy in common
When one joint tenant dies, their interest passes automatically to the surviving JT.
JT interest can be transferred during life (requires approval if it’s a tenancy by the entirety)
A person acquires title by adverse possession if their possession is (1) actual, (2) exclusive, (3) open and notorious, (4) hostile, and (5) continuous for the statutory period
If a spouse dies without a will, the surviving spouse takes all CP and QCP and either all or half of the deceased spouse’s separate property (depending on whether the deceased had issue, parents, or siblings).
A surviving spouse can reject a will and INSTEAD claim their CP and QCP share.
An attorney that is working under the supervision of a partner or other attorney has a duty to abide by the instructions that the supervising attorney gives, while maintaining her duty of independent professional judgment and to avoid committing a clear ethical violation.
