Essay Rule Review Flashcards
What kind of extrajudicial statement must an atty not make
One that they (1) know or reasonably should not will be disseminated by means of public communication AND
(2) will have a substantial likelihood of materially prejudicing the proceeding
What is an atty allowed to state to public about a case?
Permitted references include:
the identity of the parties
the offense or defense involved in the case
what references are an atty not allowed to make to the public about a case?
Prejudicial references
Examples-
(1) improper opinion about how the jury should render their verdict
(2) alleging improper conduct on prosecutor’s part
False or reckless statements about judicial officers and candidates (ABA vs. CA)
ABA : atty must not (1) knowingly false or with reckless disregard as to truth or falsity (2) make a statement about the qualifications or integrity of a judge, hearing officer, public legal official or about a candidate for a judicial or legal office.
CA: only applies to judicial officials and candidates
Duty of fairness to opposing party and counsel
ABA and CA: an atty must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document having potential evidentiary value, or counsel or assist another in doing so
*exception ABA - person is a client or the client’s agent or family member
What must a prosecutor reasonably believe they have to bring a case?
probable cause
When will the omitted child doctrine apply?
only if the child was born or adopted after the execution of the testamentary instrument
***so one who doesn’t fit this has to argue mistake by clear and convincing evidence, and reformation
Anti lapse statute
(1) if a beneficiary predeceases T, the gift lapses
(2) the anti-lapse statute says that if the predeceasing beneficiary is kin of T, the gift is saved for the beneficiary’s living descendants via substitution
Conflicts with current clients rule
Atty generally must not accept or continue representation of current client if
(1) directly adverse to another client
(2) significant risk that the representation will be materially limited by the attys own interest or the attys responsibilities to another client, former client, or 3d person
What is logical relevance?
E tends to prove or disprove a disputed fact of consequence in the action
What is legal relevance?
E’s probative value is not substantially outweighed by other dangers (like unfair prejudice)
Nonhearsay purposes
(1) as a verbal act
(2) to show its effect on the hearer
(3) as circumstantial evidence of state of mind
What is habit evidence and when is it admissible?
it describes one’s regular response to a specific set of circumstances
admissible when other character evidence is not; to prove that on an occasion the person acted in accordance with the habit
Effect on contract reformation if party was negligent in failing to review the contract for a mistake?
majority view is that reformation will not be denied due to a party’s negligent failure to review
When is rescission appropriate?
when there is no enforceable K (i.e when it is voidable) Often shown by a failure of the parties to have a true meeting of the minds
What is a K misunderstanding
a type of mutual mistake where the K language has at least two different meetings, and there is no K unless both parties intended the same meaning
CA service of process outside of US
(1) as the court directs; or
(2) if the court finds that the service is reasonably calculated to give actual notice, as directed by the foreign country’s law or by the foreign authority in response to a letter of request
Traditional bases for in personum jurisdiction
(1) domicile
(2) presence in state when served
(3) consent
Basis for general jurisdiction
(1) jurisdiction authorized by state law and
(2) D must be at home in the state
What does committing a tort in a state do for jurisdiction?
It may provide a basis for exercising specific in persunum jurisdiction over the D
when is alienage jurisdiction not permitted?
when aliens are on both sides of the case
what defense to negligence should I always discuss even if not really relevant
plaintiff’s contributory negligence
assumption of risk
what is abatement CA
when the estate does not have enough to pay all claims against it, this is the process of reducing the gifts to satisfy claims to the estate
*Testator may put an order of abatement in the will, but without one residuary will abate first.
*CA’s statutory protection of omitted spouses and children take priority and can take before other claims to the estate
Whats the math on an intestate spouse who dies leaving one or more children with their still living spouse?
surviving spouse takes (1) 1/3 of the deceased spouse’s SP and (2) their own half of the CP and their deceased spouse’s half of the CP
Quasi community property elements
(1) property acquired by either spouse while living outside of CA
(2) that would have been CP had the spouse been domiciled in CA at the time
What happens to quasi CP during life?
treated as SP, may transfer title, etc.
