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MEE subjects > Essay Rules > Flashcards

Essay Rules Flashcards

1
Q

evidence of settlement offer

A

not admissible to prove the validity or amount of a disputed claim or to impeach by prior inconsistent statement

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2
Q

sexual behavior of victim in civil case

A

admissible if it is not excluded by any other rule and its probative value substantially outweighs danger of harm to the victim

(specific acts admissible when not offered for propensity - so not admissible to prove consent but could be for some other reason)

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3
Q

lay witness opinions

A

generally inadmissible, but admissible when rationally based on

  • the witness’s perception
  • helpful to a clear understanding of the witness’s testimony
  • helpful to the determination of a fact in issue
  • and not based on scientific, technical, or other specialized knowledge
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4
Q

habit evidence

A

admissible to prove that a person conformed with the habit on a particular occasion

habit = a person’s regular response to a specific set of circumstances. It requires frequency of conduct and particularity of circumstances

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5
Q

when relevant evidence may be excluded

A

when judge determines its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, waste of time, or misleading the jury

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6
Q

standard for regulation of content of speech

A

strict scrutiny

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7
Q

overbreadth

A

overbroad = punished substantially more speech than necessary

facially invalid unless courts have limited construction so as to remove the threat to constitutionally protected expression

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8
Q

incitement

A

speech intended to produce imminent lawless action and likely to produce such action

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9
Q

fighting words

A

personally abusive words likely to incite immediate physical retaliation

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10
Q

trespass

A

intentional physical invasion of plaintiff’s real property

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11
Q

types of invasion of privacy

A
  • appropriation of the plaintiff’s picture or name
  • intrusion on the plaintiff’s affairs or seclusion
  • publication of facts placing the plaintiff in a false light
  • public disclosure of private facts about the plaintiff
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12
Q

invasion of privacy - public disclosure of private facts elements

A

publishing private information about a person that would be objectionable to a reasonable person

  • truth is not a defense
  • if matter is of public concern, publication is privileged absent actual malice, especially if obtained legitimately
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13
Q

11th amendment

A

prohibits federal court from hearing most private actions against state government (in which state is a party or would have to pay retroactive damages)

  • congress can remove 11th amendment immunity for actions created under 14th Amendment
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14
Q

state regulation that discriminates against interstate commerce to protect local economic interests

A

invalid unless necessary to achieve an important state, noneconomic interest and no reasonable nondiscriminatory alternatives

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15
Q

nondiscriminatory state law that burdens interstate commerce

A

valid unless the burden outweighs the promotion of a legitimate local interest

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16
Q

when will private action constitute state action?

A
  • the private actor is performing a traditional and exclusive state function
  • the state is significantly involved in the private action
    • state regulation of an industry does not make the industry’s action state action
    • state licensing or providing essential services does not make private action state action
    • regulation of private school does not make school’s action state action
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17
Q

gender equal protection rules

A
  • intermediate scrutiny - government can prove that the discrimination is substantially related to an important government interest
  • gov must show exceedingly persuasive justification
  • gov may not rely on overbroad generalization about males and females to justify intentional discrimination
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18
Q

modification under common law

A

traditional: modification must be supported by new consideration
modern: fair and equitable in view of circumstances not anticipated when contract was made

(usually means difficulty bordering on impracticability)

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19
Q

good faith

A

honesty in fact and the observance of reasonable commercial standards of fair dealing

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20
Q

economic duress

A

withholding something someone wants or needs will constitute economic duress if (1) the party threatens to commit a wrongful act that would seriously threaten the other party’s property or finances, and (2) there are no adequate means available to prevent the threatened loss.

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21
Q

cost of restoration

A

cost of restoration is one measure of damages.

When cost of restoration is many times greater than the difference in value in the land’s unrestored condition, damages are measured by the difference in value (courts split on this). If breach is willful and only the completion of the contract will enable the nonbreaching party to use the land for its intended purposes, the cost of completion may be most appropriate.

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22
Q

consequential damages

A

losses beyond those covered by the standard measure that a reasonable person would have foreseen would occur as a result of the breach (often turns on breaching party’s awareness of the other party’s circumstances)

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23
Q

factors for material breach

A

amount of benefit received, adequacy of damages, extent of performance, hardship to the breaching party, whether breach was negligent or willful

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24
Q

divisibility

A

if contract is divisible, a party who has performed one or more parts is entitled to collect the contract price for those parts even if it breaches the other parts.

For contract to be divisible,

  • (i) the performance of each party must be divided into two or more parts under the contract,
  • (ii) the number of parts due from each party must be the same, and
  • (iii) the performance of each part by one party is agreed on as the equivalent of the corresponding party from the other party.
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25
Q

valid deed requirements

A

(1) a writing signed by the grantor, (2) an unambiguous description of the land; (3) identification of the parties by name or description; and (4) words of intent to transfer, such as “grant”.

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26
Q

recording acts and adverse possession

A

Recording acts do not protect a subsequent purchaser against interests that arise by operation of law (e.g., adverse possession) because there is no instrument to record in order to perfect such interests

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27
Q

fee simple subject to a condition subsequent

A
  • created when the grantor retains the power to terminate the grantee’s estate upon the happening of a specified event
  • grantee’s estate continues until the grantor exercises his right of entry/power of termination by suing or making reentry
  • The following words usually are held to create conditions subsequent: “upon condition that,” “provided that,” “but if,” and “if it happens that.”
  • general policy of courts is to avoid forfeiture of estates; thus, where terms are ambiguous, there is a presumption in favor of the FSSCS
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28
Q

fee simple determinable

A
  • automatically terminates upon the happening of a stated event and reverts to the grantor
  • Durational, adverbial language (“for so long as,” “while,” ‘during,” “until) usually creates and FSD
  • presumption against when terms are ambiguous because want to avoid forfeiture of estates
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29
Q

covenant against encumbrances

A
  • assures that there are no encumbrances (e.g., mortgages, easements, servitudes) against the title or interest conveyed
  • present covenant, which is breached, if at all, at the time of conveyance
  • Present covenants do not run with the land and cannot be enforced by remote grantees
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30
Q

abandonment

A
  • common law = not a defense
  • MPC = must be fully voluntary and complete abandonment
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31
Q

plain view warrant exception

A
  • officer legitimately on the premises
  • sees or discovers evidence in plain view
  • probable cause to believe it is contraband, evidence, or fruit or instrumentality of a crim
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32
Q

waiver of Miranda

A

must be knowing and voluntary

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33
Q

criminal negligence

A

D fails to be aware of a substantial and unjustifiable risk, substantial deviation from standard of care of reasonable person

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34
Q

involuntary manslaughter

A

killing committed with criminal negligence (some states use recklessness)

OR

(in some states) unlawful act manslaughter, death during commission of unlawful act (other than dangerous felony)

35
Q

accomplice

A

one who aids, advises, or encourages the principal in the commission of the crime and who has the intent that the principal commit the substantive offense

36
Q

proximate cause

A

when result is the natural and probable consequence of defendant’s conduct, even if the precise manner in which the result occurs is not anticipated

37
Q

intervening act

A

An intervening act will shield the defendant from criminal liability when the intervening act is mere coincidence or unforeseeable. The intervening act will then be deemed to be the actual, proximate cause of the injury.

38
Q

PJ constitutional requirements

A
  • such minimum contacts with the forum state so as to not offend traditional notions of fair play and substantial justice
    • contacts - must result from defendant’s purposeful availment (voluntary act), making it foreseeable that defendant would be sued in the forum
    • relatedness - claim must relate to or arise out of contacts (if not, then general jurisdiction)
    • fairness - burden on defendant and witnesses, state’s interest in providing forum for its citizen, and plaintiff’s interests
39
Q

SJ standard

A

proper if no genuine issue of material fact and movant is entitled to judgment as a matter of law, considered in the light most favorable to the nonmoving party

40
Q

claim preclusion

A
  • same P against same D (or privity)
  • same claim (right to relief arising from same T/O)
  • final judgment (adjudication on the merits)
41
Q

issue preclusion

A
  • final judgment (adjudication on the merits)
  • same issue actually litigated
  • essential to final judgment
42
Q

general discovery rules

A

Generally, discovery may be had of any matter not privileged that is relevant to the claim or defense of any party, including the identity of persons having knowledge of relevant facts. The costs of discovery and needs of the case will also be considered

43
Q

work product

A

Work product of lawyers and others prepared in anticipation of litigation is discoverable only on a showing of substantial need and to avoid undue hardship in obtaining the material from other sources.

44
Q

JMOL

A
  • standard: court must find that a reasonable jury would not have a legally sufficient basis to find for the party on the issue
  • must view evidence in light most favorable to the nonmoving party and without considering credibility of witnesses
  • procedure: any time after other party has presented case and before judgment
45
Q

RJMOL

A
  • standard: court must find that a reasonable jury would not have a legally sufficient basis to find for the party on the issue. The court must view the evidence in a light most favorable to the nonmoving party and without considering the credibility of witnesses
  • limited to the grounds raised in initial JMOL
  • within 28 days after judgment and only if first JMOL was made
46
Q

motion for a new trial

A
  • may be granted based on any non-harmless error that makes the judge think there should be a do-over
  • including judgment against weight of evidence, but judge may not replace jury verdict with verdict he would’ve reached, so must be a serious error in judgment
  • other reasons are damages inadequate or excessive, misconduct by juror or judge
47
Q

ademption exception

A

if a conservator is appointed for the testator after the will is executed and the property is sold by the conservator, the beneficiary is entitled to the sale proceeds to the extent that they have not been expended for the testator’s care

48
Q

undue influence (wills)

A
  • influence existed and was exerted
  • effect of influence was to overpower the mind and free will of the testator
  • the resulting testamentary disposition would not have been executed but for the influence
49
Q

presumption of undue influence

A
  • confidential relationship
  • beneficiary was active in procuring, drafting, or executing the will
50
Q

lapsed residuary gift

A
  • At common law and in some states, if T’s residuary estate is bequeathed to two or more beneficiaries and one of the shares lapses, that share falls out of the will and passes by intestacy
  • Most states have replaced this rule by statute, under which the lapsed shares passes to other residuary beneficiaries in proportion to their interests in the residue
51
Q

holographic will

A

an unattested will entirely written in testator’s handwriting (attested handwritten will is not holographic)

52
Q

life insurance (template sentences)

A

Life insurance proceeds are a nonprobate asset and pass to the beneficiary outside of the estate. A life insurance policy is a contract, and the disposition of the proceeds are governed by the terms of the contract

53
Q

incorporation by reference

A

Document incorporated if:

(i) it was in existence at the time the will was executed;
(ii) the will sufficiently describes the document, and
(iii) the will manifests an intent to incorporate the document

*exception for documents disposing of tangible personal property made or altered after will

54
Q

intent for battery

A

may be either specific (i.e. the defendant’s purpose in acting is to bring about the consequences of his conduct) or general (i.e., the defendant knows with substantial certainty that the consequences will result)

55
Q

duty to rescue

A
  • No duty is imposed on a person to come to the aid of another absent a special relationship between the parties.
  • If the person gratuitously comes to the aid of the other, the act must exercise due care in providing the assistance, and must not leave the person in a worse position than he found her.
56
Q

duty to prevent acts of third person

A
  • Generally there is no duty to prevent a third person from injuring another.
  • Such a duty will be imposed when the defendant had a special relationship with the third person that gave the defendant the actual ability and authority to act, and the defendant knew or should have known that the third person was likely to injure another.
57
Q

abnormally dangerous activity

A

(1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised, and
(2) the activity must not be a matter of common usage in the community

58
Q

inherently dangerous activities

A

(impose vicarious liabilities for principals of ind. contractors)

  • Such an activity does not have to be classified as abnormally dangerous;
  • it need only be an activity in which there are special dangers to others inherent in or normal to the activity
59
Q

valid trust

A
  • settlor with capacity
  • intent
  • trustee
  • definite beneficiary
  • trust property
  • valid trust purpose
60
Q

class beneficiaries of trust

A
  • Beneficiaries need not be identified at the time a trust is created but must be susceptible of identification by the time their interests are to come into enjoyment
  • Beneficiaries may be a class, provided class is sufficiently definite
  • Settlor can give trustee discretion to select class members as long as the class is reasonably definite; if too broad, the trust will be invalid
61
Q

if settlor wants to control trust assets while alive

A
  • A trustee holds legal title to specific property under a fiduciary duty to manage, invest, safeguard, and administer the trust assets and income for the benefit of designated beneficiaries.
  • Because settlor wishes to retain full control of the trust assets, he should name himself as trustee
  • Merger of title, which terminates a trust, does not apply, even though Settlor would be the settlor, trustee, and beneficiary, if are other beneficiaries
62
Q

actual authority

A
  • express - from agreement, oral or written words
  • implied - from communications between parties or conduct; can be based on custom, necessity, or prior acquiescence
63
Q

apparent authority (general v. partnership)

A
  • general = third party reasonably believed, based on the words or conduct of the principal, that agent had authority
  • partnership = act of any partner apparently carrying on in the ordinary course of the partnership business or business of the kind carried out by the partnership will bind the partnership unless the partner had no authority to act for the partnership and the third party knew or had notification that the partner lacked authority
64
Q

dissociation of partnership at will

A
  • Dissociation is caused by a partner ceasing to be associated with the carrying on of the business.
  • A partner is dissociated from the partnership upon notice of his express will to withdraw as a partner
  • triggers dissolution
65
Q

liability post-dissolution of partnership

A
  • A partnership will be bound by a partner’s post-dissolution act if the act was appropriate winding up the business
  • A partnership will be bound by a partner’s post-dissolution act even if it was not appropriate for winding up the business if the third party with whom the partner dealt did not have notice of the dissolution and that act would have bound the partnership before dissolution (apparent or actual authority)
  • can notify creditors directly or file statement of dissolution, which provides notice in 90 days
66
Q

Estoppel in liability for acts of independent contractor

A

Estoppel can be raised when the principal creates the appearance that an employer-employee relationship exists, and a third party relies on that relationship.

67
Q

removal of a child from the jurisdiction

A
  • Removal of a child from the jurisdiction is a substantial, material change in circumstances warranting modification.
  • The court will follow the best interest of the child standard in fashioning a custody and visitation schedule.
  • It will consider: the wishes of the parents, the wishes of the child, child’s relationship with each parent, child’s adjustment to home, school, and community; and mental and physical health of the parties
68
Q

jurisdiction in divorce action

A
  • To establish jurisdiction over a divorce action, one of the parties must be a bona fide resident of the jurisdiction where the action is brought.
  • States may set a minimum durational residency requirement before the action can be filed.
  • The plaintiff’s residence alone may be the basis for a state’s granting a divorce, regardless of whether there is PJ over the defendant.
    • but must have PJ over both to distribute assets
69
Q

out of state property in divorce

A
  • Generally, a court can’t determine out-of-state property rights or rights to support unless it has jurisdiction over both parties.
  • In an ex-parte divorce, the court can grant divorce but can’t award spousal support or divide out-of-state property.
  • There is a limited exception for marital property located within the state.
70
Q

valid premarital agreement

A
  • A valid premarital agreement must be in writing, voluntary, and based on full and fair disclosure of each party’s financial worth.
  • The court must consider each provision to ensure that it is fair and does not violate public policy
    • agreement must contain fair and reasonable economic provisions for the claiming spouse; unconscionability is determined at the time the agreement is formed
    • against public policy to enforce a waiver of spousal support if it would leave a spouse dependent on the state
    • not bound by child custody agreements
    • equal duty to support children that can’t be contracted away
71
Q

business judgment rule

A

presumption that a director’s decision may not be challenged if the director (i) acted in good faith, (ii) with the care that an ordinarily prudent person would exercise in a like position, and (iii) in a manner the director reasonably believed to be in the best interest of the corporation

72
Q

limiting directors’ personal liability

A
  • The articles may limit or eliminate directors’ personal liability for money damages to the corporation or shareholders.
  • However, the articles may not limit or eliminate liability for
    • financial benefits received by the director to which he is not entitled,
    • an intentionally inflicted harm on the corporation or its shareholders,
    • unlawful corporate distributions, or
    • an intentional violation of criminal law.
73
Q

revocability of proxies

A
  • Proxies are generally revocable unless they say that they are irrevocable and are coupled with an interest.
  • Proxies are coupled with an interest if the proxy holder essentially pays for the right to be a proxy, such as where the proxy holder has purchased the underlying shares from the owner of record.
74
Q

valid proxy

A

A proxy is valid if it is written, signed by the shareholder, directed to the secretary of the corporation, and authorizes another person to vote their shares.

75
Q

authority of a corporate president

A
  • A corporate president is an agent of the corporation and has whatever power the corporation grants him.
    • As a general rule, unless specifically excluded by the corporation, a president will have the power to enter into ordinary contracts involving the day-to-day operation of the corporation.
    • A corporate president can have power to enter into extraordinary transactions if authorized by the board of directors.
    • However, the board can’t give the president power that the board itself does not have, such as implementing a fundamental corporate change.
76
Q

steps for asserting appraisal rights

A
  • must file notice of objection and intent to demand payment with the corporation
  • at vote, must abstain or vote against the proposed change
  • if approved, corporation must notify shareholder who filed intent to demand payment of time and place to submit shares
  • must make written demand to be bought out and deposit stock with the corp
  • corp must pay dissenters fair value, and shareholder can send her own estimate within 30 days if dissatisfied
  • corp can have judge decide or agree to shareholder’s terms
77
Q

change of venue rules (diversity case)

A
  • To transfer venue, the court must determine whether venue has been properly laid, and if so, whether any basis for transfer of venue exists.
    • Under the Erie doctrine, a federal court sitting in diversity must apply substantive state law, but it will apply federal procedural law.
    • If there is a federal directive on point, such as a federal rule of procedure or a federal statute, and it is valid, it will be applied
    • Venue is strictly a procedural matter that is exclusively determined by federal venue laws
  • When venue in the original action is proper, the federal court, in the interests of justice, may transfer the case for the convenience of the parties and witnesses to another venue in which the action might have been brought or to which the parties have consented
    • public factors: (i) what law applies; (ii) what community should be burdened with jury service; and (iii) desire to keep local action local
    • private factors: convenience of parties (where the defendants and evidence are found)
  • *then go through venue, PJ, SMJ to determined whether action could have been brought in new venue
78
Q

transfer of venue + forum selection clause

A
  • To transfer venue, the court must determine whether venue has been properly laid, and if so, whether any basis for transfer of venue exists.
    • Under the Erie doctrine, a federal court sitting in diversity must apply substantive state law, but it will apply federal procedural law.
    • If there is a federal directive on point, such as a federal rule of procedure or a federal statute, and it is valid, it will be applied
    • Venue is strictly a procedural matter that is exclusively determined by federal venue laws
    • Therefore, federal court may enforce a FSC even though a state court in the forum would not
  • When venue in the original action is proper, the federal court, in the interests of justice, may transfer the case for the convenience of the parties and witnesses to another venue in which the action might have been brought or to which the parties have consented
    • When the parties have agreed to a valid forum selection clause, a district court should ordinarily transfer the case to the specified forum
    • Only under extraordinary circumstances unrelated to the convenience of the parties should a transfer of venue motion be denied when there is a valid forum selection clause; only public interest factors will be considered
    • These include (i) what law applies; (ii) what community should be burdened with jury service; and (iii) desire to keep local action local
  • *then go through venue, PJ, SMJ to determined whether action could have been brought in new venue
79
Q

law applied after transfer of venue

A
  • generally, if venue was proper in transferor court, the transferee court must apply choice of law rules of transferor court
  • exception: when transfer is to enforce a forums selection clause, transferee court will apply its own choice of law rules
80
Q

consideration (template rules)

A
  • bargained-for exchange that has legal value
  • no bargain when one party gives a gift to another
  • legal value is usually considered to be either a benefit to the promisor or a detriment to the promisee
  • promise must induce the detriment and the detriment must induce the promise
  • Except: modern trend, some courts will enforce a promise lacking a bargained-for exchange if: (i) it is based on a material benefit that was previously conferred by the promisee on the promisor, and (ii) the promisee did not intent to confer the benefit as a gift
81
Q

waiver of right of redemption

A

The right to redeem collateral can be waived, but only after a default.

82
Q

Rights of debtor when secured party breaks Article 9 rules

A
  • A secured party will be liable to the debtor for any damages caused by a failure to follow Article 9 rules
  • A secured party will be prohibited from collecting any deficiency if any Article 9 default rules are broken unless the secured party can show that the breach did not cause the deficiency
83
Q

templates for duty to invest (trusts)

A
  • There is a basic duty to preserve and protect the trust corpus
  • The duty to preserve and protect includes the duty to make trust property productive, which includes the duty to invest
  • The trustee must exercise reasonable care with respect to the trust property, which means investing trust funds within a reasonable time and selling and reinvesting as needed
  • The trustee must invest and manage trust assets as a prudent investor would, taking into account the purposes, terms, distribution requirements, and other circumstances of the trust
  • to act prudently, the trustee must exercise reasonable care, skill, and caution
  • Prudence is evaluated as to overall portfolio, and the trustee has a duty to diversify investments unless there are special circumstances indicating the trust purposes would be better served without diversification.
  • If more than one beneficiary, must generally act impartially in managing trust assets, taking into account differing interests.
    • When trust is revocable, settlor treated as the owner of the trust assets, and duties are owed to the settlor
84
Q

ademption by extinction tests

A
  • objective test (most states) - if the specific property is gone, the gift fails; doesn’t look at intent
  • replacement test - if property replaced with similar property, will look to testator’s intent
  • UPC - a specific devisee has a right to any real property owned by the testator at death that was acquired as a replacement for the specifically devised property

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