Everything Flashcards
A plaintiff seeking a preliminary injunction must establish what?
(i) she is likely to succeed on the merits;
(ii) she is likely to suffer irreparable harm in the absence of relief;
(iii) the balance of equities is in her favor; and
(iv) the injunction is in the best interest of the public.
Who may be addressed in Interrogatories?
Interrogatories maybe used only on parties
BOCB - Buyer in the ordinary course of Business - Requirements?
A buyer is a BOCB if he:
(i) buys goods,
(ii) in the ordinary course of business,
(iii) from a merchant who is in the business of selling goods of that kind,
(iv) in good faith, and
(v) without knowledge that the sale violates the rights of another in the same goods.
Attachment in Security Interest - Requirements?
(i) value has been given by the secured party,
(ii) the debtor has rights in the collateral, and
(iii) the debtor has authenticated a security agreement that describes the collateral, or the secured party has possession or control of the collateral pursuant to a security agreement.
best evidence rule
requires that the original document (or a reliable duplicate) be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos.
Evidence is relevant if
(i) it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative), and
(ii) the fact is of consequence in determining the action (i.e., material)
Hearsay definition?
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion.
Hearsay exceptions?
- Unavailable Declarant:
a) Former Testimony
b) Dying Declarations
c) Statements Against Interest
d) Statements of Personal or Family History
e) Forfeiture by Misconduct (Declarant Unavailable Due to Party’s Wrongdoing) - Declarant’s availability immaterial
a) Present Sense Impression
b) Excited Utterance
c) State of Mind
d) Statements Made for Purposes of Medical Diagnosis or Treatment
e) Past Recollection Recorded
f) Business Records
g) Public Records
h) Learned Treatises (scientific, historical, or medical)
i) Judgment of Previous Conviction
j) Reputation
Claim Preclusion
The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action.
For claim preclusion to apply, the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action.
Issue Preclusion
The doctrine of issue preclusion (collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action.
Other elements necessary for issue preclusion to apply are that
(i) the issue sought to be precluded must be the same as that involved in the prior action;
(ii) the issue must have been actually litigated in the prior action;
(iii) the issue must have been determined by a valid and binding final judgment; and
(iv) the determination of the issue must have been essential to the prior judgment.
Are Lay opinions admissible?
Lay opinions are admissible with respect to commonsense impressions. To be admissible, the opinion must be
(i) rationally based on the perception of the witness and
(ii) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. Additionally, the opinion must not be based on scientific, technical, or specialized knowledge.
When does the Sixth Amendment apply
The Sixth Amendment right to counsel automatically attaches when the State initiates prosecution with an indictment or formal charge.
Subject Matter Jurisdiction - Requirements?
Under federal law, a U.S. District Court has diversity jurisdiction over a matter if no plaintiff shares the state of citizenship of any defendant and the amount in controversy in the case exceeds $75,000.
Common Law Murder
Common-law murder is the unlawful killing of another human being with malice aforethought.
Felony-Murder Rule
Unintended and foreseeable killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony (BARRK - Burglary, Arson, Robbery, Rape, Kidnapping)
Voluntary Manslaughter
A homicide committed with malice aforethought, but also mitigating factors.
Involuntary Manslaughter
Unintentional homicide committed with criminal negligence (grossly negligent)
Larceny
- Trespassory
- Taking and
- Carrying away
- of the personal property
- of another
- with specific Intent to permanently deprive the owner of the property
Robbery
- Larceny +
- From the person or presence of the victim
- By force or intimidation
Burglary
- Breaking and
- Entering
- of the dwelling
- of another
- at night
- with the specific intent to commit a felony therein
Arson
- Malicious
- Burning
- of the welling
- of another
Extortion
The taking of money or property from another by threat
- Making the threat is the essence of the crime
- The threat need not be of immediate harm or of a physical nature
- the property need not be on the victim or in his presence
