Essay stuff to know IV Flashcards
What do you say to start off a search and seizure?
The Fourth Amendment protects citizens against unreasonable searches and seizures
A search and seizure are valid only if the government acted pursuant to a valid warrant.
If the warrant is not valid or if there was no warrant all evidence is inadmissible unless an exception to the warrant requirement applies.
Also, the difference between an exclusionary rule and the fruit of poisonous tree?
Under the exclusionary rule, evidence obtained in violation of a defendant’s constitutional rights is general inadmissible at trial
Under the fruit of the poisonous tree doctrine, evidence derived from unconstitutionally obtained evidence will also be suppressed
suppression is not required if the train of the unconstitutional action can be attenuated.
Valid roadblock means what?
To be valid, a roadblock must i) stop cars on the basis of some neutral, articulate standard, and ii) be designed to service purposes closely related to a particular problem pertaining to autompoviles and their mobility.
What should a judge say when adivsing to accept a guilty plea?
Prior to accepting a guilty plea, the jkudge must determine that the plea is voluntary and intellingent
this must be done by addressing the defendant personally in open court on the record.
The judge must ensure that the defendant known and understand: a) the nature of the charge and the crucial elements of the crime charged, ii) the maxim,um possible penalty and any mandatory minimum and iii) that the defendant has a right not to plead guilty but waives the right to trial if he does plead guilty.
The remedy for a failure to meet the standard for taking a plea is withdrawal of the plea and pleaing anew.
In attempt, what is the standard to determine whether there was mere preparation or not?
The defendant must have committed an act beyond mere preparation for the offense, ii) the traditional rule follows the “proximity test” which requires an act that is dangerously close to success, iii) a majority of the states now follow the test similar to that of the Model Penal Code, requiring a “substantial step” towards the commission of the crime.
How do you terminate a periodic tenancy?
A full period before IN WRINTG!
What happens when a tenant unjustifiably abandons the property?
Landlord may do nothing o rrepossess the property.
Traditionally the landlord may let thepremises lie idle and collect rent from the abandoning tenant.
The majority view requires the landlord to make reasonable efforts to mitigate his damages by reletting to a new tenant failure to do will reduce his recovery.
Does a landlord have a common law duty to repair?
Sort of/.
The duty must be provided for in the lease or require dby statute or by implied warranty of habitability,
What do you say for a breach of lease terms?
At common law, covenatns in a lease were independent of each other, meaning that one party’s breach resulted in a claim for damages but did not excuse the other party’s performance or entitled her to terminate the lease.
Modern courts construe covenants as dependent when the breach relates to a material part of the laeaset excusing one party’s performance after proper notice an time to cure.
Do you need to show actual damages for public matters?
YUP
When a defamatory statement involves a matter of public concern or involves a public figure, the plaintiff must provide competent evidence of actual injury (i.e., presumed damages are not permitted absent a showing of knowledge of falsity or reckless disregard of truth). Actual injury is not limited to out-of-pocket loss; it may include impairment of reputation, personal humiliation, and mental anguish
Equitable Subordination
Equitable Subordination
As a general rule shareholders who are unsecured creditors are not subordinate to other, outwise unsecured creditors. Thus, if the general rule is followed, EC, M and R each would be entitled to a pro rata share of D’s 50,000.
Since EC is owed 90,000 of the total 120,000 debt it would be entitled to ¾ of the 50,000 (37,500), and M and R each would be entitled to 1/8th share (6250). However, a court might subordinate M and R’s claims if any kind of wrongdoing is attributable to them. This is known as the Deep Rock doctrine or equitable subordination. In such a case, Dryco would receive the entire 50,000 and M and R each would receive nothing.
promoters jointly and severally liable?
- Partners - -like promoters are jointly and severally liable for obligations incurred on behalf of the partnership. Since it can be argued that the purchase of the dryer was for the partnership business, R can be held liable for the balance left owing to EC on a partnership theory.
So, what do you say for diversirt where there is 1 P vs. 3D?
For a court ot have subject matter based on diversity jurisdiction, i) the amount in controversy must exceed $75,000 and ii) there must be complete diversity which requires that each plaintiff must be of diverse state citizenship from every defendant.
i) an individual is a citizen of his domicile, ii) a corporation is a citizen of every US state or foreign country in which it is incorporated and the one US state or foreign country in which it has its principal place of business, iii) the xitizneships of the parties are determined when suit is filed,
iv) GENERALLY, THE AMOUNTS CLAIMED AGAINST DIFFERENT DEFENDANTS MAY NOT BE ADDED TOGETHER TO SATISFY THE AMOUNT IN CONTROVERY REQUIREMENT UNLESS THE PLAINTIFF IS ASSERTING A CLIAM FOR WHICH THE DEFENDANTS ARE JOINTLY LIABLE.
NOTE: that if we have P and D1 and D2. If D1 wishes to remove ENTIRE case, D2 gotta join as well, otherwise not.
If you “moved all your belongings” to State B for work, does that mean that you now reside in State B?
Yes, even if the contract was supposed to be done in 3 years or so (although argue otherwise as well)
What is an appeal by writ?
i) Alternatively a party can seek an extraordinary writ of mandamus or prohibition as a means of review on a showing of irreparable harm if the normal appeals route would be followed.
ii_ the movant also must show a beneficial interest in the outcome of the writ proceeding.
Ex. a P can argue that the costs of going to trial in federal court and then do ti all over again state court would causes expenses that are too great.
Slap down for conflicts of itnerests
Under the AVA Rules a lawyer may undertake a representation despite the concurrent conflict if the lawyer i) reasonably believes that he can competently and diligently represent each affected client despite the conflict, and ii) each affected client gives informed consent confirmed in writing.
The California Rule is the same, except that it requires “informed written consent”.
Slap down for the duty of competence
i) a lawyer must act competently in handling legal matters for his client,
ii) in California a lawyer is subject to discipline only if he intentionally recklessly, with gross negligence or repeatedly fails to perform legal services with competence.
Don’t forget that lawyers have a duty to supervise
A lawyer having managerial or direct supervisory authority over a nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.
Governing disbarred in California
i) the California Rules also specifically govern the employment of disbarred and otherwise ineligle lawyers
ii) with notice to the State Bar and affected clients, such persons may engage in certain research, drafting and clerical activities,
iii) but must not engage in any activity that constitutes the practice of law.
So, you piercing the corporate veil, can you do that if the shareholders took money belonging to the corporation for themselves and then the corporation also made misstatements.
So first you give the slapdown for piercing the corporate veil.
Then, you talk about alter ego and how shareholders abused a privilege of corporation and it is unjust to let them keep it.
Then you try to argue that there was fraud, because the corporation made mistatements, that the shareholders should be held liable.
Do directors have to declare dividends?
NO, they have discretion on whether to do so. Can always argue that a lot of income called for sharing but this is unlikely to be a successful argument.
Can a board of directors advance funds if the directors are undergoing some lawsuits?
YEAH kinda….
Advancement is permitted if the directors furnish the corporation with a statement that they believe they met the appropriate standard of care and that they will repay the corporation if they are later found not to have met the appropriate standard.
when can a shareholder build an individual claim against the corporation?
They can when i) the direct actions seek to redress injuries to the personal rights of the plaintiff and ii) the remedies in direct actions inure to the shareholder directly.
If so, go on on whether the corporation breached a duty to the shareholder. If so then he can sue.
ALSO NOTE, directors owe duties to corporation NOT shareholders. So shareholders CAN’t bring personal actions against directors because they breached their fiduciary duties.
Duty of care of directors
when going through them don’t forget to mention that in making decisions directors are allowed to rely on information opinions and reports made by other corporate employees directors and officers whom the directors reasonably believe to be reliable and competent.
Shareholder and dissolution
Remember that a shareholder (even a minority)can ask for the dissolution of the corporation if it finds that they were oppressed by majority shareholders.
Requirements to ask questions on cross-examination
i) A witness may be interrogated upon cross examination regarding any specific instance pf conduct that is probative of truthfulness
ii) but the cross examiner must make the inquiry in good faith (DIDN”T KNOW THIS, this was in relation to a lawyer who asked question while having no evidence)
Can a receipt be hearsay?
YUP!!!!! don’t forget. Likely admissible under the business record exception.
Tell me about the best evidnece rule [look at second point in particular]
i) under hte best evidence rule, when the terms of a writing in the case where the terms are material, the original must be produced
ii) the best evidence rule applies where the knowledge of a witness concerning a fact results from having read it in the document.
An exact copy of an original such as photocopy, is admissible to the same extent as an original unless a) a genuine question is raise about the original authenticity, or ii) under the circumstances it would be unfair to admit the duplicate in place of the original
Strategically, how do you go through hearsay?
Mention some of the exceptions even if they are liekyl not to apply as long as there is a chance that they will apply. COver everything!
If shareholders approved a material change, can they later sue for breach of duty by the board?
Whether the sharehodlers will be estopped from complaining about the board’s breach because they approved the merger
i) a person may be estopped from complaining about actions that he himself approved
ii) however estoppel works only when all material facts are known by the party against whom estoppel is eough
Here the shareholders argument would be that while they overwhelmingly approved the cash out merger they would to have done so if they had known that the board had made no effort to determine what the company’s stock was worth
It would be unfair to stop the shareholders form complaining here.