EXAM REVIEW Flashcards
Action for Trespass
Defendant acted with intent to cause physical invasion of Plaintiff’s Property
Plaintiff must be in possession or have right to immediate possession
mistake is not a defense
Mandatory Injunction Elements
(1) Current/Imminent Loss of a Right
(2) Inadequacy of Legal Remedies (irreparable harm)
(3) Balance of Hardships
(4) Public Interest not Harmed
When are Legal Remedies (money damages) not Adequate
(1) where civil rights are at stake
(2) public health/environment at stake
(3) Money Damages are difficult to calculate
(4) Interest in R/E is infringed
(5) violations are discrete but repetitive
Elements of a Temporary Injunction or a Temporary Restraining Order
(1) Likelihood of Success on the Merits
(2) Money Damages Inadequate (irreparable harm)
(3) Balance of Hardships
(4) Public Interest not Harmed
(5) Bond must be posted for the amount of damages the opposing party would suffer if movant ultimately fails on the merits
What are the additional requirements for a TRO
(1) can get an ex parte proceeding only if movant attempted to provide notice, or movant reasonably believes notice will frustrate benefits of the TRO
Specific Performance
Availability and Elements
Available for breaches of contract legal remedy is inadequate:
(1) unique or scarce
(2) interest in real property
(3) Closely-Held Stock (no readily ascertainable mkt price and voting control)
(4) covenant not to compete
Unavailable where (1) personal services, or (2) ongoing cooperation btw parties.
Name some procedural errors or misconduct that would render a basis for a new trial
Wrongful admission/exclusion of evidence
Incorrect Jury Instruction
Communications between witnesses
Ex Parte communications with judge
Improper Jury Misconduct
Grounds for Appeal (FRCP)
FRCP
(1) Final Judgments (including partial)
(2) Preliminary Injunctive Relief
(3) Class Certification
(4) Certified Order
(5) Collateral Order
Elements of a Certified Order
FRCP (“DMC”)
D- on which there is a substantial difference of opinion
M- an immediate appeal will materially advance the ultimate resolution of the action
C- involve controlling questions of law
Elements of a Collateral Order
(1) order pertains to a matter collateral to merits
(2) order conclusively decides a particular Issue
(3) Delaying appeal until final judgement has issued would effectively deny appellate review of the issue
Draw Estates in Land Chart
Go find it, punk!
What are the elements of a vested remainder
(1) created in ascertainable person; and
(2) no cond’n precedent to 3P taking, other than term’n of prior estate
Property Waste
VOLUNTARY WASTE (volitional act): T cannot int’lly/neg’lly damage property/anything attached that negatively affects £’s value.
PERMISSIVE WASTE (omission): T when T fails to take reas steps to protect against damage to £.
AMELIORATIVE WASTE
C/L: T cannot make substantial alterations to £ w/ authorization even when improving value of property.
Modern Law: ameliorative waste allowed if (1) mkt value not impaired, and (2) either (a) improvement permitted by remaindermen, or (b) change to nature of property/neighborhood justifies improvement
REMEDY
Vested Remaindermen: dmgs/injunction
Contingent Remaindermen: injunction
To which interests does the Rule Against Perpetuities apply?
Executory Interests
Contingent Remainders
Vested Remainders Subject to Open
Right of First Refusal
Purchase Option
Real Property: Cotenants
Right to Profits
Rights to Rents
Duty to pay Taxes/Mortgage
Duty to Repair Premises
Duty to Make Improvements
PROFITS
if by effort of CoT1: CoT1 gets all. However, if CoT2 ousted, they must share equally
RENTS
Must share in equal proportion to interest of each cotenant
TAXES/MORTGAGES
Each must pay his/her proportionate share. If a cotenants lives on premises, they have primary obligation to pay, but may recover proportionate shares from other CoTs
REPAIRS
No direct duty to repair. If a Co-T chooses to repair, they do at own expense. But, if £ is rented, and co-t repairs it, the cost of repair can be offset against the 3P rent
IMPROVEMENTS
no duty to improve. If one co-tenant does improve, they do so at own expense. But, if property is subsequently sold, and the sale produces and increased sale price bc of the improvement, then the Co-T who made the improvement gets the add’l amount
What is the scope/extent of land one can acquire by Adverse Possession
Only land occupied by Adverse Possessor
Whole property if adverse possessor
(1) enters under Color of Title
(2) occupies a significant portion of parcel described in the flawed deed
Real Property: Covenant of Marketable Title
When does it apply
What does it promise
Remedies if Unmarketable
Exclusions?
TIME
Applies at closing
PROMISE
Seller’s implied promise to deliver marketable title–title reasonably free from defect
“Defect”
(1) unpaid mortgage/lien (but not unmarketable if (a) proceeds from sale sufficient to pay lien/mtg, and (b) are in fact used to pay them simultaneously w/ transfer of land)
(2) covenants/easements restricting land use
(3) title acquired by adverse possession (not unmarketable if adverse possessor obtains judicial decree declaring ownership)
(4) existing statutory/zoning violation
REMEDIES:
(1) rescission
(2) get money damages, or
(3) specific performance with abatement
EXCLUSIONS
Can be excluded if expressly stated
Buyer’s remedies if title is unmarketable
Only on day of closing
(a) rescission
(b) dmgs for breach of K
(c) s/p w/ abatement of purchase price
Real Property: Covenants of Title
PRESENT COVENANTS (do not run w/ land: breach must be at closing):
(1) Seisin: grantor owns and possesses the property granted.
(2) Right to Convey: grantor has right to convey £.
(3) Against Encumbrances: no encumbrances on £ (beyond those expressly in deed) (encumbrance is any right in 3P that diminishes property’s value/use)
FUTURE COVENANTS (run w/ the land: can be breached at C or Y).
(4) Quiet Enjoyment: grantee will not be disturbed by a superior claim.
(5) Warranty: grantor will assist in defending title against lawful claims and will compensate grantee for losses sustained.
(6) Further Assurances: grantor will do anything real’y nec to perfect grantee’s title
If a new building is sold by the builder, what must the builder do
Must disclose any material defects that would violate any applicable building code. Must update at closing, if any changes occur.
If there are any misrepresentations, buyer may terminate the K.
What must the seller of one to four dwelling units do
Disclose physical cond’n of £ or state £ is sold “as is”.
How does the relation back doctrine work when a conveyance by deed is made through a 3P (escrow)
Escrow: when grantor gives deed to 3P and instructs to deliver, when 3P succeeds, date of conveyance relates back to date grantor handed deed to 3P.
A single cond’n will not defeat relation back doctrine (more will).
If grantor expressly retains right to reclaim deed from 3P, defeats relation back doctrine
Elements of Conveyance by Deed
(1) Writing: signed by grantor or conveyance proved by 2 witnesses
(2) Donative Intent: present intent to transfer interest immediately
(3) Delivery: Actual (presume transfer); grantor retains (presume no transfer); Escrow situations (blub)
(4) Acceptance
Lien Theory of Mortgages
Mortgagor gets RTP, rents, and profits unless foreclosure
Does not sever Joint Tenancy
Requirements of a Judicial Foreclosure Sale
(1) public,
(2) properly noticed,
(3) conducted in reas manner, and
(4) result in “fair” sale price (not unconscionable)
Real Property: Grantee “Assumes” the Mortgage
Grantee primarily liable Original Mortgagor (Grantor) SECONDARILY liable.
Mortgagor can be compelled to pay, but may:
(1) Recover from Grantee;
(2) Obtain Exoneration: court order compelling grantee to pay debt;
(3) Subrogation: if mortgagor pays off debt, he may be subrogated to the mortgage and the note. He can sue grantee (in personam) or foreclose
NOVATION
A novation can release the mortgagor
Deed of Trust
Debtor borrows money and executes deed to £. Lender selects 3P, who retains deed and returns it to debtor when debt is paid.
Same analysis as w/ mortgage (exc wrt foreclosure). A trustee conducting a foreclosure sale can apply its proceeds to discharge costs of executing trust.
SOL: enforceable for up to 10 years after last payment is due. Death of mtgee will toll SOL for 1 year
How may a gift causa mortis be revoked?
(1) donor expressly,
(2) donor doesn’t die as anticipated,
(3) donee dies before donor, or
(4) gift is necessary to pay debts of deceased donor
Types of Easements
PING - P
EXPRESS GRANT created expressly (SOF applies, yo)
EASEMENT BY PRESCRIPTION
20 years
IMPLIED - EASEMENT BY CONVEYANCE
(1) Common Ownership: of dom and serv estates, then severance;
(2) Quasi-Esmt (prior use): at severance, esmt already existed; and
(3) Reas Necessity: reasonably necessary that esmt exist.
EASEMENT BY NECESSITY
(1) Common Ownership: of dom & serv estates, then severance; and
(2) Strict/Absolute Necessity
PUBLIC USE EASEMENT
Public uses easement for statutory period
Methods of Terminating an Easement
(“PB SEAMEN”)
MERGER: if one person acquires both dom and serv estates.
WRITTEN RELEASE: holder executes unilateral release that satisfies SOF.
ABANDONMENT. (1) Holder stops using easement, and (2) words/conduct showing intent to abandon.
ESTOPPEL: (1) holder engaged in conduct that leads owner of servient estate to believe easement isn’t going to be used any more, (2) the owner detrimentally relies on that belief, and (3) reliance was reasonably foreseeable.
SEVERANCE (only for esmt appurtenant): Esmt holder’s attempt to sever easement from dominant estate will result in term’n of the easement.
PRESCRIPTION: owner of servient estate interferes w/ use of esmt continuously for statutory period.
SALE OF SERVIENT ESTATE TO BFP: Esmt usually runs w/ land. But sale to one w/o notice and for value will terminate esmt.
END OF NECESSITY (applies only to esmt by necessity): the strict/absolute necessity ends.
Licenses
(a) creation
(b) transferability
(c) termination
(d) revocability
LICENSE: personal right to enter property of another
Transfer- not w/o licensor’s permission
Termination- death of licensor; or transfer of serv estate
Revocability- freely revocable, unless (a) couple w/ interest (b) detrimental reliance
PROFITS (for fun): right to enter property and take something
Creation- express writing; or prescription
Analysis- same as easements
Elements of Covenant
Elements of Equitable Servitude
Relief for breach of Covenant and Breach of E/S
COVENANT (PINT)
(1) Touch and Concern: Servient Estate: reduces use and enjoyment of servient estate. Dominant Estate: enhances or increases use or enjoyment of dominant estate.
(2) Intent: for restriction to run w/ land (bind future landowners). IMJ-proof of T&C shows intent to run.
(3) Notice (only serv side): servient estate must take w/ notice of the restriction.
(4) Privity:
Horizontal: privity of K in connection w/ land (but not just any K wrt the land). Usually must be Grantor-Grantee (deed); Mortgagor-Mortgagee (Mgte); LL-T (lease).
Vertical Privity: privity of estate. On servient side, there must be transfer of entire ownership interest to new owner. On Dominant side, any transfer is sufficient.
EQUITABLE SERVITUDE (TIN)
RELIEF
Covenants: money damages
E/S: injunction
Termination methods for Covenants and Equitable Servitudes
(“CREAM”)
C- Changed Circumstances - circumstances change so that reason reason for restriction no longer valid
R- Express Written Release
E- Estoppel- same as easements
A- Abandonment
M- Merger
Rules for Lateral/Adjacent Support and Subjacent Support
LATERAL/ADJACENT SUPPORT
If natural condition, S/L
If Improvement, and it did not cause subsidence: S/L
If Improvement did cause subsidence: Neg’l
SUBJACENT SUPPORT
S/L for natural conditions and improvements before agreement.
Improvements made after agreement: neg’l
Defenses to paying rent
FAILURE TO DELIVER POSSESSION
ACTUAL EVICTION: physical removal from all/part – total defense to any rent payment
CONSTRUCTIVE EVICTION: substantial interference with use and enjoyment of property
Tenant must move out within a reasonable time
Total: defense to any payment
Partial: rent abated
SURRENDER: Tenant surrenders possession to landlord and landlord accepts
DESTRUCTION: (modern) defense to any payment, unless T is at fault.
OTHER CONTRACTUAL DEFENSES: frustration of purpose; impossibility; violation of quiet use and enjoyment
CONTRACTUAL OFFSET
Warranty of Habitability (residential leases): fit for human habitation. T does not need to move out. T must notify landlord and give reas time to fix. If not fixed, T may fix and offset amount.
What are the elements of a crime (MBE)
ACTUS REA: voluntary, conscious act that causes unlawful result (or omission, if duty to act)
MENS REA: Guilty state of mind
CONCURRENCE: the criminal state of mind must actuate (set in motion) the act that produces the criminal result
CAUSATION: actual and proximate cause
Actual cause: (1) but for test; (2) substantial factor test; or (3) acceleration (only homicide)
Proximate Cause: harm produced was within objectively foreseeable range of possibility
(homicides additionally require CORPUS DELECTI: proof V is actually dead, and proof death resulted from a person’s criminal act)
Mens Rea: Criminal States of Mind (MBE)
INTENT: Purpose or knowledge.
PURPOSE: ∆ acts w/ conscious desire to produce prohibited result.
KNOWLEDGE: ∆ engages in conduct he knows, w/ substantial certainty, will produce prohibited result.
WILLFUL: ∆ acts w/ purpose or knowledge and moral turpitude.
RECKLESS: ∆ is subjectively aware his conduct creates an unjustifiable risk, but ignores that risk and engages in the conduct.
CRIMINAL NEGLIGENCE: ∆ is not subjectively aware that his conduct creates an unjustifiable risk, but a RP would have been aware of the risk created. Requires a gross deviation from the reasonable standard of care.
MALICE: intentionally or w/ reckless disregard of an obvious or known risk that the particular harmful result will occur
Specific Intent and General Intent (MBE)
SPECIFIC INTENT: ∆ intended to produce the particular result
May be negated by (1) an honest, but unreasonable mistake of fact; or (2) voluntary intoxication.
GENERAL INTENT: merely requires commission of an unlawful act w/ a criminal state of mind
May be negated only by an honest and reasonable mistake of fact.
Legal duties that make omissions criminal (MBE)
statutory (PO officer);
contract (lifeguard);
relationship;
voluntary undertaking later abandoned;
omission after creating risk
Define Malice (MBE)
Express Malice
Implied Malice
MALICE: Intentionally or w/ reckless disregard of an obvious or known risk that the particular harmful result will occur.
EXPRESS MALICE: ∆ acted (a) w/ purpose to kill; (b) w/ knowledge conduct will kill; or (c) w/ intent to inflict grievous bodily harm.
IMPLIED MALICE (a) ∆ caused death w/ extreme reckless or criminally negligent conduct that creates extreme risk manifesting a wanton disregard for human life; or (b) felony murder.
Proximate Cause Analysis for Crimes (MBE)
Main analysis: an intervening event will supersede ∆’s responsibility when event is objectively unforeseeable
Foreseeable: simple negligence. Intervening causes that were dependent/responsive to ∆’s conduct (supersedes only when totally abnormal).
Unforeseeable: gross neg’l/recklessness. Independent/coincidental intervening causes (will supersede unless foreseeable)
Felony Murder Components (MBE)
UNLAWFUL KILLING
RIGHT TYPE OF FELONY: (1) enumerated felony or (2) a felony that is both collateral to the killing and inherently dangerous.
Collateral: primary felonious purpose CANNOT be serious physical harm
“Inherently Dangerous”: inevitable secondary effect of the felony is serious risk to human life in all contexts (in the abstract)
RIGHT CONNECTION TO FELONY: resulting death must be a foreseeable outgrowth of the felony
RIGHT TIME: harm that results in death must be btw when ∆ could be convicted of attempt and when crime terminates (∆ reaches a place of temporary safety)
Mayhem (MBE)
(1) intent to maim or do bodily injury and (2) either
(a) dismember victim (loss of body part),
(b) disable use of body part useful for fighting, or
(c) permanently disfigure (modern)
(S/I)
Rape (MBE)
C/L: (a) carnal knowledge (vaginal penetration) (other than wife); (b) against V’s will (V must resist); (c) by force or threat of force (causally connected to V’s submission). Mistake is not a defense
Modern: (a) Sexual penetration of another (b) w/o V’s reasonable consent. Mistake is a defense today if reas and honest.
[G/I]
Defenses to Inchoate Crimes (MBE)
CONSPIRACY Withdrawal (C/L and MPC): complete and voluntary withdrawal made timely to all co-conspirators (defense to future crimes--pinkerton) Renunciation (MPC): (a) withdrawal and (b) performs affirmative act to thwart conspiracy's success (defense to future crimes and conspiracy itself)
ATTEMPT:
C/L: no defense
Modern: voluntary and complete abandonment; legal impossibility
ACCOMPLICE LIABILITY
C/L: (1) put principal on notice of withdrawal and (2) nullify prior assistance (defense to future liability)
Modern: either (1) nullify prior assistance, (2) provide police with timely warning, or (3) affirmative act to thwart perpetrator’s success
Criminal Self Defense (MBE)
SELF DEFENSE (a) ∆ is victim of unlawful threat; (b) ∆ reasonably believes he is in imminent danger of bodily harm; and (c) ∆may use force reasonably necessary to prevent such harm.
INITIAL AGGRESSOR
c/l: initial aggressor must completely withdraw to use self defense
Modern: may use self defense (1) upon complete withdrawal perceived by initial V; or (2) if initial V responds w/ excessive force
DEADLY FORCE: only permitted in response to imminent threat of death or grievous bodily harm
C/L: must retreat to the wall
Modern: stand your ground
Criminal Law Necessity Defense (MBE)
(a) necessary to avoid immediate threat of greater harm to persons/property,
(b) no reas alternative to breaking law to avoid the greater harm; and
(c) ∆ is not responsible for causing the greater threat.
C/L: not defense to murder, unless to negate underlying felony for felony murder.
MPC & friends: defense to any charge, even homicide if ∆ kills 1 to save many.
Criminal Insanity Defense Tests (MBE)
M’NAGHTEN TEST: at time of crim act (1) ∆ suffered from severe mental disease/defect; AND
(2) as a result, he was “totally incapable” to know either
(a) nature/quality of his act, OR
(b) what he was doing was wrong.
IRRESISTIBLE IMPULSE TEST: (a) ∆ has severe mental disease/defect, and (2) ∆’s incapable of controlling the impulse to commit a crime.
MPC TEST: (1) ∆ has mental disease/defect; AND
(2) ∆ lacked “substantial capacity” to either
(a) appreciate the criminality (wrongfulness) of his conduct, OR
(b) conform his conduct to the reqs. of law.
DURHAM RULE (New Hampshire Rule) (Produce Rule): ∆’s unlawful act was product of mental disease/defect
Criminal Duress Defense (MBE)
Duress. excuses criminal conduct when (a) ∆ reas’ly believes that only way to avoid unlawful threats of great bodily harm/imminent death is to engage in unlawful conduct. Not a defense to murder, unless to excuse underlying felony in felony murder.
FRCP Supplemental Jurisdiction Analysis
Step 1: supp’l claim must arise from same T/O as claim w/ juris.
Step 2: If anchor claim predicated on Div/Juris, no S/Juris for claims by plaintiffs against persons made parties under Rules 14, 19, 20, 24, or claims by persons made parties under R19 or R24.
Step 3: court may exclude S/Juris: (a) claim involves novel & complex issue of state law; (b) claim “subst’ly predominates” anchor claim; (c) court dismissed anchor claim; (d) other compelling reasons
Federal Common Law in Federal Courts pertains to what issues?
(1) maritime/admiralty (2) foreign relations (3) commercial rights/liabs of federal government (4) £ rights/liabs of federal government
Erie Analysis
STEP 1: APPLY FEDERAL LAW. Apply valid federal statute or CXal provision that is on point.
Validity: the federal law is CXal. If FRCP, it does not “abridge, enlarge, or modify any substantive right.”
On Point: This is a question of interpretation. There is no spelled-out rule.
STEP 2: AVOID UNFAIRNESS AND FORUM SHOPPING: If no on-point, valid federal/CXal law, federal court should follow its ordinary practices, unless doing so would lead to the preference for one court system over another (forum-shopping) or to fundamental unfairness.
What must a complaint include (FRCP)
(1) Short and plain statement of the grounds for the court’s jurisdiction.
(2) short and plain statement of the claim showing that the pleader is entitled to relief: this stt must include “sufficient factual matter” to state a plausible claim that is more than merely possible.
Fraud/Mistake: must describe fraud/mistake w/ particularity.
(3) Demand for Judgment and Relief
When does an amendment to a pleading relate back (to avoid SOL)?
NEW CLAIMS/DEFENSE: relates back if new claim/defense arises from same T/O as an existing claim/defense.
NEW PARTIES: relates back if (a) party had notice of the action so that it will not be prejudiced in defending it; and (b) party should have expected to be named as a ∆, but for a mistake concerning the proper party’s ID.
How to serve process in federal court
(1) Manner Prescribed by a State
manner prescribed by state courts where federal court sits OR state courts where ∆ will be served.
(2) FRCP 4:
Natural Persons: (1) deliver personally; (2) leave at ∆’s abode w/ person of suitable age and discretion who resides there; (3) ∆’s registered agent; (4) mail process w/ service waiver form—if ∆ declines to waive service, he is responsible for cost of service.
Corps./P’Ships/Ass’ns: serve (1) officer; (2) managing/general agent; (3) Agent authorized to receive service—If agent is authorized by law, and law requires service by mail, process must be served both by hand and by mail
(3) CATCHALL
DPC requires that π took steps reas’ly calculated to inform ∆ of action against him; if ∆ has notice, SofP isn’t necessarily required
When is permissive joinder appropriate (FRCP)
can join if (1) joined parties can claim relief (πs) or face liability (∆s) arising out of same T/O, and (2) common questions of law or fact
Class Actions
REQ. 1: CAN CLASS BE FORMED (“CANT”):
Commonality: questions of law or fact common to the class;
Adequate Representativeness: representative parties will fairly and adequately protect the interests of the class;
Numerosity: class is so numerous that joinder of all members is impracticable;
Typicality: claims of the representative parties are typical of those of the class, ensuring class rep will have incentive to litigate in ways that protect class.
REQ. 2: PROPER FOR ADJUDICATION AS CLASS ACTION (“IGAPS”)
(1) Inconsistent/Impair: separate actions would create risk of Inconsistent judgments or judgments that would substantially Impair the ability of a nonparty member to protect his interests;
(2) Generally Applicable: Party opposing class acted in way Generally Applicable to class; or
(3) Predominate/Superior: court finds that (a) common questions of law or fact predominate over individualized questions and (b) class action is superior to other available methods for the fair and efficient adjudication of the controversy
Class Actions: Subject Matter Jurisdiction and Removal (FRCP)
For state law claims, all representative πs and ∆s must be completely diverse. However, C/As over 100 members that seek damages over $5M may enter federal court if 1 π is diverse from 1 ∆.
Removal: home-state ∆ exception does not apply. Only need 1 ∆ to remove entire case
Discovery of Experts
Non-testifying Experts: not discoverable unless (a) extraordinary need and (b) no other way to obtain such info.
Expert Testifying at Trial (“ACID”): discoverable to limited extent;
I- expert’s initial disclosure;
C- comm’ns wrt compensation for expert’s study/test’y;
D- comm’ns re data provided by att’y to expert;
A- comm’ns re any assumption the attorney asked the expert to make in developing expert opinion.
Sanctions for failing to comply with a motion to compel (FRCP; R37)
(a) court order establishing facts in favor of moving party; (b) court order prohibiting non-moving party from presenting certain claims/defenses; (c) stay/dismissal of entire action; (d) order of contempt
When does the FRE not apply?
MBE: GAP BOSS Grand jury Admissibility, preliminary questions of (except privilege Preliminary hearings Bail proceedings Obtaining warrant Sentencing/probation hearings Summary contempt
Judicial Notice
what are the types
when can it be raised
what is its effect
Substitute for evidence: court accepts facts as true w/o formal presentation of evidence
TYPES
- Facts commonly known in the jurisdiction
- Facts capable of accurate, ready determination by sources of unquestionable accuracy
TIMING
before trial, after trial, on appeal
EFFECT
Civil: jury must accept
Criminal: jury may accept
FRE 403
Relevant evidence may be excluded if its PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHED by danger of
- (1) unfair prejudice
(2) confusion of issues
(3) misleading the jury
(4) undue delay
(5) wasting time
(6) needless presentation of cumulative evidence
FRE: Character evidence
What type can be used in civil cases
In what instances can it be used in civil cases
ROSA: reputation, opinion, specific act
When character is an essential element of the claim:
Negligent Entrustment
Negligent Hiring
child custody
defamation
Misrepresentation/Deceit
Assault/Battery, if claiming self defense
FRE: When can character evidence be used in a criminal case
when ∆ opens the door with testimony of his own good character or of the victim’s bad character (prosecution can then attack/bolster either). Must be pertinent character trait
Special Homicide Exception: if ∆argues self-defense, prosecution can use evidence of V’s good (peaceful) character, even if ∆doesn’t open door
Heavily Tested: prosecution can cross examine character witness and impeach that witness with specific acts of ∆. (must be in GF)
MIMIC-KOP!
When can character evidence can always be admitted in a criminal case?
When it’s admitted for a purpose other than to prove character: MIMIC-KOP
Motive Intent M- lack of mistake/accident Identity Common scheme/plan Knowledge Opportunity Preparation
This evidence admitted can be an act/testimony that happened before, during, or after the offense.
Subsequent remedial acts: when are they admissible and when are they not
ADMISSIBLE
impeachment
If controverted, to show
ownership or control
feasibility of precaution
INADMISSIBLE To show negligence, culpability, design defect, or need for warning
What’s the deal with settlement offers?
Not severable: admission/evidence does not sever from the settlement offer
Can be used to show: bias/prejudice; negate allegation of undue delay, show effort to obstruct criminal investigation/prosecution
Psychotherapist-Patient Privilege
Definition of Psychotherapist
Definition of Patient
Exceptions to Privilege
Psychotherapist: actually licensed mental health specialist (especially social workers and marriage counselors)
Patient: person who consults, is examined, or interviewed by a mental health specialist
Exceptions: commitment proceedings; court-ordered eams; when medical condition is part of the claim (Personal injury; malpractice) future crime or fraud
Marital Communications Privilege
What Types of Cases?
Holder?
What kind of marriage is required?
Effect of Divorce/Death?
What types of information does it protect?
When is it waived?
What are exceptions to it?
CASE TYPES: civil and criminal
HOLDER: both spouses
MARRIAGE REQUIREMENTS: valid marriage required
DIVORCE/DEATH: no effect
INFORMATION PROTECTED: *confidential *communications made *during marriage
confidential: not intended for others; made privately
communications: not observations
during marriage: communication must be made during marriage
WAIVER: only by both together
EXCEPTIONS:
Crimes/torts committed by one spouse against the other or THEIR child
adversarial proceedings
joint participation in a crime
Spousal Immunity Privilege (Testimonial Privilege)
What Types of Cases?
Holder?
What kind of marriage is required?
Effect of Divorce/Death?
What types of information does it protect?
When is it waived?
What are exceptions to it?
CASE TYPES: Criminal only
HOLDER: witness spouse
MARRIAGE REQUIREMENTS: valid marriage required
DEATH/DIVORCE: divorce terminates privilege
INFORMATION PROTECTED: It protects ALL evidence, regardless of confidentiality, can be communication or observation, both before and during marriage
WAIVER: can be waived by the witness spouse
EXCEPTIONS:
adversarial proceedings;
suits involving a child of EITHER spouse
PASI
In preliminary hearing
Effect of asserting PASI on jury
Testifying at preliminary hearing doesn’t waive privilege at trial. ∆’s attempt to enforce PASI at preliminary hearing can’t be used as evidence at trial.
In civil case, jury may draw adverse conclusion from assertion of this privilege. But it cannot in a criminal case
When can a juror testify during the current proceeding?
(a) extraneous prejudicial information improperly brought to juror’s attention
(2) outside influence improperly brought to bear on any juror, and
(3) clerical/secretarial errors
How may a witness be impeached
(1) bias/prejudice
(2) sensory defects
(3) prior inconsistent statements
(4) character trait for untruthfulness
Impeaching a witness because of witness’s character trait of untruthfulness
When is character of untruthfulness of a witness permitted? In what forms is it permitted?
Bad Act Impeachment
Impeachment by Evidence of Felony Conviction
Always allowed: character for untruthfulness is always material and may be attacked by opinion or reputation. Once attacked, can be bolstered by opinion/reputation.
BAD ACT IMPEACHMENT (Collateral Matter Rule applies)
On cross examination, may use specific instances of prior unconvicted* acts (bad acts) to impeach
IMPEACHMENT BY EVIDENCE OF FELONY CONVICTION
If ∆ is the W (in a criminal case): admissible if “probative value outweighs its prejudicial effect”
If ∆ is not W: Admissible if passes R403
IMPEACHMENT BY EVIDENCE OF CRIMEN-FALSI: evidence of crimes requiring dishonest acts or false statements are always admissible
if 10 years have elapsed since conviction or release from confinement, whichever is later, evidence is admissible if its probative value substantially outweighs its prejudicial effect (and must give notice)
When are leading questions permitted
PARCH
P- preliminary background information A- adverse witness R- refresh recollection C- child witnesses H- hostile witnesses
Rule of exclusion/sequestration, does not exclude
(1) parties
(2) essential witnesses (experts)
(3) statutorily exempt people (victims)
Violation of the rule results in mistrial
FRE
What are the requirements for lay witnesses?
What may they testify to?
What are they not allowed to do?
Lay witnesses must have personal knowledge
VEMPS
V- value of one’s own property
E- emotional states
M- measurements
P- physical states (e.g., sickly, intoxicated, fat)
S- sensory descriptions (e.g., bad smell, bright blue)
S- Sanity of Testator
Cannot state testimony in conclusory terms or provide a legal conclusion
FRE- Expert Testimony
Qualified + Relevant + Reliable
QUALIFIED
Special skill, knowledge, education, experience, training
RELEVANCE: must be relevant/helpful to factfinder
RELIABLE - TAPES T- Tested (methodology) A- Accepted (generally by relevant community) P- Peer Reviewed E- Rate of Error S- Standards
FRE- “Not Hearsay”
it is a statement not offered for its truth
(1) effect on the listener
(2) state of mind
(3) verbal acts: independent legal significance (tortious words/transactional words)
(4) legally operative facts: words accompanying ambiguous physical actions (“this is a gift”)
(5) impeachment
FRE- “Non Hearsay” (Definitionally Not Hearsay)
Admitted for substantive truth
(1) ADMISSIONS (statement by party opponent)
Direct
adoptive (silence where RP would deny)
authorized
vicarious
co-conspirator (C existed by POTE; D is member; STT in furtherance of C; stt made during C)
(2) PRIOR STATEMENT: declarant must testify and be subject to cross examination
- PINS (sworn)
- PCS (rehabilitate after inference of recent fabrication)
- PID (made after perceiving person)
FRE - Hearsay Exceptions: R803
(1) Present Sense Impression.
(2) Excited Utterance.
(3) Then-Existing Mental, Emotional, or Physical Condition (not wills)
(4) Statement Made for Medical Diagnosis or Treatment.
(5) Recorded Recollection (personal knowledge; made/adopted by W when fresh in W’s memory; accurately reflects W’s knowledge)
(6) Records of a Regularly Conducted Activity.
(7) Absence of a Record of a Regularly Conducted Activity.
(8) Public Records.
(9) Public Records of Vital Statistics.
(10) Absence of a Public Record.
(11) Records of Religious Organizations Concerning Personal or Family History.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies.
(13) Family Records.
(14) Records of Documents That Affect an Interest in Property.
(15) Statements in Documents That Affect an Interest in Property.
(16) Statements in Ancient Documents.
(17) Market Reports and Similar Commercial Publications.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets.
(19) Reputation Concerning Personal or Family History.
(20) Reputation Concerning Boundaries or General History.
(21) Reputation Concerning Character.
(22) Judgment of a Previous Conviction.
(23) Judgments Involving Personal, Family, or General History, or a Boundary.
R804: Hearsay Exceptions–Declarant Unavailable
Requires Declarant be Unavailable: PRISM P- Privilege R- Refusal I- Incapability/Incapacity S- Subpoena M- Memory
“Fire Fighter PAD”
(1) FORMER TESTIMONY
Sworn Statement,
given by W in a proceeding on the same subject matter, and
party testimony is being used against had an opportunity and similar motive to examining the W
(2) DYING DECLARATION (civil cases; criminal *homicide cases)
(3) STATEMENTS AGAINST INTEREST
Statement against declarant’s interest when made; and
Declarant is a non-party;
If W is ∆, and stt is against declarant’s penal interest, corroboration is required
(4) PEDIGREE (statement of personal/family history)
(5) FORFEITURE BY WRONGDOING
Confrontational Clause
criminal cases
Declarant must be available for cross examination if offering testimonial evidence
What does the Best Evidence Rule Require
When does it apply
When does it not apply
Requires originals of writings, recordings, and photos
APPLICABILITY: only applies when
(1) when contents of writing are in issue, AND
(2) no independent source to prove the issue (i.e., W w/ personal knowledge)
NON-APPLICABILITY (“LOCS”)
L- lost/destroyed (unless BF)
O- opponent has original and won’t deliver
C- collateral (not related to controlling issue)
S- Subpoena (original cannot be obtained by judicial procedures)
Additionally,
(1) Duplicates: valid to the extent of original, unless question of duplicate’s authenticity
(2) Public Records
(3) Summaries of Voluminous Writings: may be presented in chart, summary, calculation. the original records must be available for both parties.
Alford Plea
Allows a defendant to recognize the elements of the offense and the weight of the evidence, without admitting guilt.
The effect is that of a guilty plea.
The defendant waives the right to confront witnesses as well as a trial by jury and appeal
Contracts:
How to determine whether a hybrid contract is for goods or services
predominant purpose rule: consider
(1) the language of the K
(2) nature of supplier’s business
(3) Relative value of goods vs. services
What is the Parol Evidence rule
Exceptions?
Ks intended to be final and complete expression of agreement, contemporaneous or prior parol evidence is inadmissible to contradict or supplement the terms.
If parol evid explains/interprets terms: always admissible
If parol evidence supplements terms: admissible unless completely integrated.
If used to contradict terms: parol evidence is not admissible if completely integrated or terms are integrated
EXCEPTIONS
subsequent agreements
collateral agreements
attack on validity of agreement: failure of oral condition precedent and absence of consideration. (also, normal defenses)
Anticipatory Repudiation
A/R OCCURS WHEN:
(1) definitive statement that the party will breach; or
(2) voluntary/affirmative act that renders the party unable to perform or apparently unable to perform.
IF NO A/R: if there are reasonable grounds for insecurity (i.e., reas grounds to believe other party won’t perform), insecure party may demand adequate assurances.
UCC: demand must be in writing
Other party must respond with reasonable assurances w/in reasonable time (UCC: 30 days), or else this will constitute A/R.
REMEDIES WHEN THERE’S AN A/R:
(1) cancel K
(2) S/p
(3) ignore repudiation (continue under K)
RETRACTION OF REPUDIATION (by breaching party): A/R may be retracted until insecure/aggrieved party
(a) acts in reliance of the repudiation
(b) positively accepts repudiation by signifying this to the breaching party, or
(c) filing lawsuit
Contracts: unilateral mistake
voidable by disadvantaged party if
(1) other party knows of party’s mistake, or
(2) serious error
No excuse in either case if party assumed mistake or error was caused by that party’s extreme negligence.
Mutual Mistake
voidable by disadvantaged party if
(1) both parties are mistaken about a material fact, and
(2) disadvantaged party does not bear risk of mistake under agreement
Impossibility
Excused if
(1) not anticipated at time of formation,
(2) objectively impossible, and
(3) disadvantaged party does not bear risk under agreement
Impracticability
excused if
(a) unforeseen at time of formation,
(b) cost/burden beyond anticipation of parties, and
(c) disadvantaged party does not bear risk under agreement
Frustration of purpose
(a) principal purpose frustrated
(b) frustration is substantial, and
(c) nonoccurrence of frustrating event was basic assumption of the K
(d) disadvantaged party does not bear risk under agreement
When will a court grant reformation?
(1) Fraud in the Inducement (fraud wrt terms of agreement)
(2) Mutual Mistake about the TERMS of the agreement (not the underlying facts)
(3) Unilateral Mistake: (a) X is mistaken about the TERMS of a contract, and (b) Y knows of X’s mistake.
Terms: error in the words, not the underlying facts.
When will a court grant Rescission
(1) misrepresentation (innocent/fraudulent)
(2) Mistake (unilateral/bilateral)
(3) Substantial Breach: breach that goes to the heart of the contract
Restitution (Part 1): Unjust Enrichment
UNJUST ENRICHMENT (restitution as common law right of action)
(a) π conferred a benefit on ∆, and
(b) it would be unjust for ∆ to retain the benefit
Remember volunteers/officious intermeddlers are not eligible.
Restitution (Part 2): Restitutionary Remedies
DISGORGEMENT (converted money w/ profit): applies to cases of conversion/fraud, but in any case where ∆ has profited from his wrongful behavior. Only applies to money
CONSTRUCTIVE TRUST (personal/real property): applies when ∆wrongfully acquires ownership of real/personal property. Can’t use disgorgement bc it only applies to money. However, if ∆uses converted money to purchase property, may use constructive trust
πcan retain property or liquidate it for cash.
EQUITABLE LIENS (improvement in property): ∆’s wrongful acts don’t result in accrual of cash or new title in property. In these cases, appropriate remedy is an equitable lien.
Allows πto force sale of property if ∆ doesn’t pay debt to π.
Equitable Defense: Laches
Defense to only equitable remedies
(1) Unreasonable Length of Time: moving party has waited an unreasonable length of time in asserting its claim (equitable remedy); and
(2) Prejudice: non-moving party has suffered prejudice because of the delay
Equitable Defense: Equitable Estoppel
Applies to both legal and equitable claims
(1) Representation: moving party made representation
(2) Reliance: non-moving party relied on the representation
(3) Change of Position: non-moving party changed position as a result of reliance
(4) Detriment: non-moving party prejudiced by change of position
Satisfying C/L SOF
(1) SUFFICIENT WRITING:
(a) Identifies parties
(b) nature/subject of contract
(c) essential terms (price and date of performance)
(2) SIGNED BY PARTY AGAINST WHOM ENFORCEMENT IS SOUGHT
Land contracts: partially performed
1+ year contracts: fully performed
*VA: must rely on your own acts of partial performance to avoid SOF; and act must be done only to perform K (i.e., or no other reason than to perform K)
Satisfying UCC SOF
SIGNED WRITINGS
(1) writing
(2) signed by party against whom enforcement is sought
(3) sufficient to show K btw parties
(4) quantity term
MERCHANT’S EXCEPTION
(1) writing sufficient against sender (signed, shows K, quantity term)
(2) sent within reasonable time of contract formation
(3) actually received and receiving party has reason to know of its contents
(4) no written objection sent w/in 10 days by receiving party.
* if objection is sent w/in 10 days, see if it satisfies subsection 1
IN-COURT ADMISSION: party admits to K’s existence in testimony, pleading, or otherwise in court (K enforceable up to quantity admitted)
PARTIAL PERFORMANCE: when BOTH parties partially perform (payment made and received; or goods received and accepted)
SPECIALLY MANUFACTURED GOODS
(a) goods specially manufactured for buyer
(b) not suitable for sale to others in seller’s OCOB
(c) Seller has substantially begun to manufacture or has made commitments to procure the goods
(d) such manufacture/commitments reasonably indicate goods are for buyer; and
(e) such actions began/occurred before seller received notice of buyer’s revocation
Acceptance under the UCC
Seller may accept by a (1) promise, prompt/current shipment of (2) conforming goods or (3) nonconforming goods.
Nonconforming goods sent as “accommodation,” is a C/O. If not sent as an accommodation, shipment of nonconforming goods constitutes acceptance, which both creates contract AND breaches it.
Express Warranties (2-313)
Seller expressly or impliedly warrants the goods in the following ways:
(1) affirmation of fact/promise;
(2) description of the goods;
(3) sample, or
(4) model
DISCLAIMER
disclaimer must be able to be read consistently with the terms creating the express warranty
Implied Warranty of Merchantability
Applies only when seller is a merchant
Warrants goods are fit for the ordinary purposes for which those goods will be used
DISCLAIMER
Must mention the word “merchantability”
If in writing, must be conspicuous
can be excluded by using “as is,” “with all faults,” or similar language
Can be excluded if defect is patent
Implied Warranty of Fitness for a Particular Purpose
(a) seller knows or should know the buyer is purchasing the products for a particular purpose
(b) buyer relies on seller’s skill or judgment to select/furnish such goods.
DISCLAIMERS
(a) MUST be in writing, and
(b) must be conspicuous
Can be excluded by using “as is,” “with all faults,” or similar language
Can be excluded if defect is patent
Non-Carrier Cases
UCC
parties do not agree to use common carrier
If seller is not a merchant, the risk of loss passes to buyer upon tender of delivery
If seller is a merchant, risk of loss transfers when goods are physically in buyer’s possession
Carrier Cases
UCC
parties agree to use common carrier
there are two options.
Default is Shipment K (“FOB Seller”: Free on Board Seller): seller promises to turn goods over to carrier—risk of loss passes here.
In a Destination K (“FOB Buyer”) seller promises to tender delivery at a particular destination point—this is where risk passes.
UCC Perfect Tender Rule
Terms of a K are enforced exactly. Seller breaches if the goods fail to conform in any respect, and the buyer is relieved of payment
Fraudulent Misrepresentation (“fraud”)
(1) MISREPRESENTATION: assertion inconsistent w/ existing facts (oral/written; conduct (concealment); “half-truth”).
Opinions/Guesses: not misreps; but professional opinions/guesses are misreps.
(2) WRONGFUL STATE OF MIND (both parts req)
(a) Scienter: ∆ made assertion knowing it to be false, or knowing he had no idea whether it was true or false. AND
(b) Intent to Mislead: ∆ made assertion for purpose of misleading or knowing there was a substantial likelihood that the aggrieved party would be misled.
(3) MATERIALITY (either will suffice): Objective Materiality: assertion is likely to induce a RP to enter into K. Subjective Materiality: ∆ had reason to know it was likely to induce particular aggrieved party into entering K.
(4) REASONABLE RELIANCE : RP under same circs would have relied on the assertion
For innocent misrep: substitute wrongful state of mind w/ strict liability.
For negligent misrepresentation: substitute wrongful state of mind with negligence (failure to exercise reas care)
What are a buyer’s options if a buyer accepts non-conforming goods (UCC)
(a) buyer must pay K price; and (b) buyer may seek damages for any nonconformity, if seller has been seasonably notified
BUYER MAY LATER REVOKE IT ACCEPTANCE
After accepting, buyer may revoke if (1) nonconformity “substantially impairs” the value of the goods AND (2) EITHER
(a) buyer accepted w/o awareness of nonconformity, OR
(b) seller assured buyer that a known nonconformity would be cured but the seller failed to do so
Seller’s right to cure shipment of nonconforming goods (UCC)
PERFORMANCE TIME NOT YET EXPIRED: may substitute CG if seller (a) gives reas notice of his int’n to cure, and (b) tender CG before end of perf time.
PERFORMANCE TIME EXPIRED:
(1) seller reas grounds to believe tender would be acceptable to buyer, he may cure if seller
(2) gives buyer reas notice of int’n to cure; and
(3) makes tenders CG w/in reas time
Nonconforming tender for installment contracts
if NCG substantially impairs value of whole K, it is breach of whole K, and K can be cancelled;
if it substantially impairs the value of only this installment, buyer can reject installment, but cannot cancel the entire K
if it does not substantially impair the value of this/any installment, buyer must allow seller to cure w/in a reas. time.
Expectation Damages for breach of K
Loss of value of the breaching party’s performance
PLUS incidental and consequential costs generated by breach
MINUS payments received from breaching party
MINUS costs saved as result of breach.
EXPECTATION DAMAGES NOT AVAILABLE WHERE
(1) Cost of perf greatly exceeds mkt value of perf
(2) Expect’n Dmgs can’t be calculated w/ reas certainty (e.g., new bus w/ no profit hist).
(3) Damages are unforeseeable (to breaching party): breaching party liable for conseq damages if, at time of K-ing, breaching party knew or had reason to know of the conseq damages that would result from breach.
(4) Damages can be Mitigated: NBP must take reas efforts to mitigate. If reas mitigation fails or causes more expense, then BP will be fully liable
Enforceability of liquidated damages
unenforceable if constitutes a penalty designed to punish a breach. Factors:
(1) did parties intend clause to compensate or to penalize
(2) was clause reas at time of K in relation to anticipated harm
(3) was clause reas in relation to harm and losses that actually occurred due to breach
Contractual Assignments and Delegations
(a) assignor’s manifestation of intent
(b) assignor’s present transfer of an existing right
(c) vests upon notice to obligor
EXCEPTIONS
(a) assignment materially alters risks/obligations of the obligor
(b) obligor has personal interest in rendering performance to the obligee and not 3P
(c) assignment violates applicable law or public policy
(4) assignment prohibited in contract: this is a breach of K by assignor, but not a basis to nullify assignee’s rights)
DELEGATIONS: allowed unless
(a) performance is personal, or
(b) prohibited in the contract
Elements of a valid arrest/search warrant
(a) based on valid PC,
(b) magis neutral/detached, and
(c) warrant describes w/ particularity thing to seize or place to search
Fresh Facts: Affidavit given to magis must have fresh, relevant facts (not stale) showing fair probability Φ committed crime or evid is at particular place.
Knock and Announce Rule
Ω must knock and announce their ID before entering home to execute warrant, UNLESS
(a) RS doing so will endanger Ω, or
(b) result in destruction of evidence or flight of Φ.
VIOLATION
Violates 4th Am, but does not trigger exclusionary rule.
When is the execution of a warrant unreasonable?
Warrant Execution: If unconscionable–unreas if shocks the conscience.
Probable Cause (“fair probability ”)
When is PC always required?
facts and circs in Ω’s knowledge warrant a RP to conclude
For Arrests: indiv in question has committed crime, or
For Searches: specific items related to criminal activity can be found at particular location
PC always req: (a) full-scale intrusion, (b) full-blown evid’y search, or (c) arrest
PC based on a tip
(“totality of the circs” test): to determine if informant provided predictive info indicating informant had insider knowledge of Φ’s crim activities, consider: (a) informant’s veracity (past tips; if informant revealed his ID); (b) basis of knowledge; (c) Ω investigation corroborates fact in tip and establishes accuracy of informant’s prediction
Reasonable Suspicion
(1) belief
(2) based upon articulable information that would warrant RP/reas Ω to believe that Φ has or is about to engage in criminal activity.
RS can justify: (a) brief investigatory seizure (terry stop) or (b) cursory protective search (terry frisk).
Define Seizure of Person
Define Arrest
Define Seizure of Property
SEIZURE OF PERSONS
RP in same circs would not feel free to leave or terminate the Ω encounter. Done by (1) phys force, or (2) show of authority followed by submission.
ARREST Max. Seizure, indicating initiation of crim prosecution process.
SEIZURE OF PROPERTY: Ω action results in meaningful interference w/ a possessory interest
Terry Stop
Brief seizure w/ sole purpose to investigate a RS a crime has or is about to be committed. Scope: Permissible only for time nec to confirm/deny suspicion
Arrests
Exceptions to Arrest Warrant
Must be reasonable (i.e. warrant or established exception) (all require PC)
(I) ARREST WARRANT
(II) WARRANTLESS ARREST
(1) In Public: PC required
(2) At Φ’s home: warrant is required, unless exigent circumstances:
(a) arrest attempt outside and Φ retreats into home;
(b) delay to secure warrant would allow Φ to evade arrest/destroy evid;
(3) hot pursuit and Ω have PC to arrest.
Add’ly, (a) offense must be more serious than misdemeanor; and
(b) Ω cannot have unlawfully created exigency to avoid getting warrant
Informants and RS
informant’s tip can create RS, if Ω verify informant’s predictions .
Do not need insider access; however, must be more than current, existing information
(“∆ will be at bus stop in 1 hour”: sufficient.) (“∆is at bus stop”: insufficient)
Seizures of Property
Warrant required, unless
PLAIN VIEW DOCTRINE (Virulent Attack Animals)
(a) Ω are in lawful Vantage point to observe the item;
(b) incriminating nature of item immediately Apparent (immediately ests. PC); and
(c) Ω has lawful Access to the point of seizure (may take item w/o committing a search)
Searches
Must be reasonable.
Reasonableness requirement triggered by
INVESTIGATORY TRESPASS:
(1) intrusion/trespass of Φ’s home (including curtilage, but not open fields), papers, or effects with
(2) purpose of finding/gathering evid of crime
INTRUSION INTO REASONABLE EXPECTATION OF PRIVACY
REP exists where: (a) Φ manifests subjective expectation of privacy, by attempting to shield thing/activity from public; and
(b) expectation is objectively reas—expectation society is willing to recognize
animals and machines in general public use are okay!
Exceptions to Search Warrant
(“ANTHONY T. CHASES”)
(1) SEARCHES INCIDENT TO LAWFUL ARREST
(2) AUTOMOBILES.
(3) SPECIAL NEEDS EXCEPTION
(4) CONSENT
(5) HOT PURSUIT
(6) EXIGENT CIRCUMSTANCES
(7) TERRY FRISK
(8) ADMINISTRATIVE SEARCH
(1) SEARCHES INCIDENT TO LAWFUL ARREST
- must actually and lawfully arrest
- may search person and area in immediate control
AUTOMOBILE SITLA
If Φ is in the car or has immediately exited the car,
(a) Ω may auto’ly search Φ’s person;
(b) if Φ has “genuine access” to interior of the car after being placed under arrest, SITLA extends to interior of the car and all containers in interior;
(c) if ∆ does not have genuine access to the interior of the car, Ω may only search car if Ω has reas belief that evid related to the crime of arrest is in car
(2) AUTOMOBILE Searches
automobile or any self-propelled conveyance may be searched w/o warrant if there’s PC (searched limited to PC)
- may impound and search later
- vehicle must be mobile
(3) Search pursuant to SPECIAL NEEDS EXCEPTION
REQUIREMENTS: checkpoints for brief seizures/limited searches to protect public from an immediate danger
(a) fixed formula that deprives ind. Ω from discretion to select subjects,
(b) narrowly tailored in scope to address specific immediate threat, and
(c) conducted in location/manner that minimizes civilian anxiety
PROHIBITED USES: (a) general crime control, (b) disco evid, or (c) roving checkpoint that randomly stops vehicles to check license/regis (must be fixed checkpoint)
AT BORDER/PORTS OF ENTRY: may conduct routine searches at permanent checkpoints: need RS for non-routing search
(4) Search pursuant to CONSENT
By a totality of the circumstances, the consent must be
(a) knowing, and
(b) voluntary
Consent invalidated by fake warrant, fraud, duress, unlawful police threat
SCOPE: limited by police request and indication of item police looking for
consent may be limited or withdrawn at any time
THIRD PARTIES: may give access to shared premises, but not private, reserved areas where ∆has exclusive control
Police reasonably relies on 3P consent when (1) person has actual authority, or (2) reasonably police officer would believe the person has actual authority
reliance unreasonable if ∆is present and objecting
(5) Search incident to HOT PURSUIT
may search private dwelling if entered after hot pursuit of fleeing suspect
(6) EXIGENT CIRCUMSTANCES
DELAY: to get warrant will result in imminent (a) destruction of evid, (b) escape of Φ, or (c) risk to Ω or others.
CRIME SCENE: Ω can search to find other V’s or remaining violent felon. but can’t generally search scene
(7) Search incident to TERRY FRISK
Cursory protective search for weapons/other items that create imminent danger to police or others, allowed if:
(1) police has RS that Φ is armed and dangerous
Scope: only to confirm/deny suspicion of danger.
Seizure: if Ω feels something he immediately knows is a weapon/other contraband, officer may seize it w/o warrant. If manipulation is required, that is unreasonable search.
Terry frisk can be extended to car or house: May search area in car where person will have immediate access to weapon. May search house to look for ambush
Remedy for search/seizure in violation of 4th Am
Exclusionary Rule/Fruit of the Poisonous Tree Doctrine: Only applies if (a) ∆seeking exclusion has standing; (b) no exclusionary rule exception applies
FPT: evid derived as but-for result of initial illegality is excluded as tainted fruit of the poisonous tree
EXCEPTIONS
(1) Independent Source: evid also obtained from independent lawful source.
(2) Inevitable Discovery: inevitable disco of evid through independent lawful source.
(3) Attenuation : weigh flagrancy of Cxal violation (potency of poison) against distance btw violation and evid.
(4) GF Exception
FPT NOT INVOKED:
Miranda Warnings
Knock and Announce Rule
Impeachment: evidence used to impeach
Good Faith Exception
Ω act in GF on invalid warrant, evid not excluded.
GF EXCEPTION INAPPLICABLE: if reas Ω would not rely on warrant
(1) Ω lie/mislead magistrate (lie is imputed to all other Ωs);
(2) reas Ω would know magis isn’t neutral/detached; OR
(3) warrant so facially defective no reas Ω would rely
GF EXCEPTION APPLICABLE
(1) search conducted in reliance on judicial precedent changed prior to case coming to trial;
*(2) Ω error is isolated neg’l attenuated from the point of arrest (e.g., Ω relied on warrant that should have been purged from system by Ω).
Massiah Rule
6TH AM right to counsel
(1) ONLY FOR DEFENDANTS: initiation of formal adversarial process (formal charge, indictment, arraignment, prelim hearing, but NOT GJ)
(2) Only for critical stages of adversarial process
(3) protects only against questions regarding offense ∆is actually charged with
SATISFIED:
if lawyer was present during questioning, OR
∆ executes knowing (∆ knew right he was waiving) and voluntary (no coercion) waiver
IDENTIFICATIONS
ID evidence excluded if procedure was (a) so unnecessarily suggestive that it (b) created an irreparable risk of mistaken ID
If physical lineup violates 6th amendment
(1) result of lineup are per se inadmissible at trial;
(2) in court identification is permissible if prosecution can show by Clear and Convincing evidence that in-court ID is independent from the inadmissible out-of-court ID
Privilege Against Self-Incrimination
any proceeding has absolute privilege to refuse to testify when
(a) “real and substantial fear” that person’s test’y will result in self-incrimination or contribute to criminal conviction in the U.S.A., AND
(b) person asserts privilege to refuse to testify
use/transactional immunity avoids PASI
Miranda Warning and Waiver
(I) CUSTODY
(a) formal arrest, or
(b) RP in Φ’s position would believe freedom has been deprived to a degree analogous to formal arrest. Objectivity is key.
(II) INTERROGATION
(1) direct questioning, or
(2) words/actions that reasonable officer would anticipate would likely result in eliciting an incriminating response.
If Ω exploit a known vulnerability of Φ, it is imputed to reasonable Ω (increase likelihood of interrogation).
LIMITATIONS/EXCEPTIONS
(1) no FPT: confession is excluded, not evid it leads to
(2) Public Safety: miranda not required in emergency situations
(3) Impeachment: may be used for impeachment
(4) waiver: knowing and voluntary
Liability under Negotiable Instrument:
Accommodation Party (guarantor/surety)
If “guarantee of collection”: signer obligated to pay only if either
(1) execution against principal has been returned unsatisfied
(2) principal is insolvent or in an insolvency proceeding
(3) principal cannot be served with process; or
(4) otherwise apparent that payment cannot be obtained from principal
DEFENSES:
Accommodation parties may assert any defense available to principal, except insolvency, incapacity, bankruptcy
If there’s a material change in the collateral or underlying agreement (btw creditor-principal) that prejudices the accommodation party, obligation is discharged to the extent of the loss.
Torts:
Public Nuisance
Private Nuisance
PUBLIC NUISANCE:
(a) πhas right to recover (if annoyance COULD annoy public generally, it may be brought regardless of how few people are affected);
(b) π has representative authority as public official/agency; and
(c) πhas standing to sue (in representative capacity)
PRIVATE NUISANCE: thing/activity substantially and unreasonably interferes with plaintiff’s use and enjoyment of his land
∆must be legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either
(1) intentional and unreasonable; or
(2) unintentional, and negligent/reckless
Defamation
(1) ∆’s publication of
(2) defamatory material
(3) concerning πcausing reputational harm
Libel Per Se
Libel Per Quod
Slander
Slander Per Se
Criminal Procedure: Identifications
Applies to any identification (photo array, voice ID, physical lineup). Focus is reliability
ID excluded if
(1) so unnecessarily suggestive that
(2) it created an irreparable risk of mistaken identity
Criminal Procedure: Right to Speedy Trial
CLOCK STARTS (1) formal charge or (2) arrest
Factors considered
(1) length of delay
(2) reason for delay
(3) demand for speedy trial made
* (4) *prejudice to ∆
Criminal Procedure: Failure to Disclose Evidence to ∆
Disclosure must be both favorable and material
Favorable: triggers right
material: reasonable probability of different outcome
- π not required to disclose before plea bargain
- destruction violates DP if intentional and in BF
Criminal Procedure: Right to Counsel
Trigger: ∆must be actually imprisoned for any time
INEFFECTIVE COUNSEL
(1) counsel’s performance fell below minimum standard of lawyer conduct, and
(2) effective counsel would have created reasonable probability of different outcome at trial
Criminal Procedure: Right to Jury
Triggered upon potential imprisonment for MORE THAN SIX (6) months for ONE charge
jury pool must be fair cross section of ethnic and gender demographic of community; NOT petit jury
Criminal Procedure: Double Jeopardy
(1) jeopardy must attach;
(2) same offense; and
(c) by same sovereign
JEOPARDY ATTACHES:
Bench Trial: first witness sworn and court begins to hear evid
Jury Trial: when jury is empaneled and sworn
SAME OFFENSE: either
(1) separate “unit of prosecution”; or
(2) separate factual elements
Define “Deed of Trust”
What are its advantages
deed is held by third person until obligation is repaid or default
ADVANTAGES: avoids expense/delay/complexity of judicial foreclosure.
Crim Pro: Double Jeopardy
(a) Jeopardy Must Attach
- jury empaneled and sworn in, or
- when first W is sworn and court begins to hear evidence
(b) same offense
(c) same sovereign
Constitutional Law: Congress Spending Power
Almost anything
WHEN REGULATING ACTIVITY IT DOES NOT HAVE AUTHORITY TO REGULATE (RUNG C) *Relatedness Unambiguous Not Coercive General Welfare Constitutional
CXAL Law: Appointment Power
POTUS APPOINTMENT
POTUS REMOVAL Executive Officials w/o fixed terms: Exec Officials w/ Fixed Terms: Executive Officials w/ (Quasi-)Judicial Fxn: Federal Judges: Special Prosecutor Investigating POTUS:
CONGRESS
Delegation of Appointments
Grant of Permission to POTUS
Grant of Permission to itself
POTUS
may appoint high-level officials with advice and consent of senate
REMOVAL:
Executive Officials w/o fixed terms: POTUS can remove at will
Exec Officials w/ Fixed Terms: POTUS needs cause
Executive Officials w/ (Quasi-)Judicial Fxn: POTUS Requires Cause
Federal Judges: POTUS Cannot remove (reqs impeachment)
Special Prosecutor Investigating POTUS: POTUS cannot remove
CONGRESS
Congress can delegate appointment of “inferior officers” to (i) POTUS, (ii) Courts, (iii) Heads of Executive Departments
Congress cannot require POTUS to get its permission to approve/remove officers
Congress cannot give itself power to remove
CXAL Law: Civil War Amendments
Can overcome state sovereign immunity
Apply of their own force
Remedies imposed pursuant to these must be congruent and proportional
THIRTEENTH: ban slavery (both state and individual)
FOURTEENTH: Prohibits states from violating Due Process, Equal Protection, and Privileges and Immunities
FIFTEENTH: Prohibits Race Discrimination in Voting
CXAL Law: Veto Power
POTUS has 10 days to sign/veto
After 10 days, acts as a signature (approved)
If vetoed, 2/3 of both houses may override
POCKET VETO
if Congressional term expires before 10-day period, bill dies when congress goes out of session. No further action can be taken on the bill (Congress cannot override)
CXAL Law: When is state taxation of the federal government unconstitutional?
when it interferes with federal functions
CXAL Law: When is federal taxation of state governments unconstitutional
when it is taxing
(i) Unique State Government Activities, or
(ii) Essential State Government Functions
CXAL Law: Anti-Commandeering Doctrine
10th amendment
Federal government can’t make states act in their sovereign capacities: (i) can’t make legislator’s pass a law; (ii) can’t make state authorities enforce a federal law.
This applies even if state consents or is happy to obey.
Prohibitions are not commandeering when applied to either of these capacities.
CXAL Law: Dormant Commerce Clause
Exceptions
States cannot discriminate against out-of-state economic actors
State Law Discriminates on its face: Strict Scrutiny
State Law Incidentally Burdens Interstate Commerce: Law must serve (i) an IMPORTANT state interest; and (ii) must not excessively burden interstate interest.
EXCEPTIONS
Congressional Authorization: Congress enacts a law approving of the regulation/law
Market-Participant Doctrine: When states aren’t acting as sovereigns, but instead, as private individuals participating in the market
Law Burdens States Own Citizens: does not invoke DCC
CXAL Law: State Action Requirement
CX protects only against governmental action
EXCEPTIONS
Public Function Theory: Private actor performing traditionally governmental act
Significant State Involvement: Private Action Closely encouraged and supported by government (state is carrying out its purpose through private individuals)
Thirteenth Amendment
CXAL Law: Privileges and Immunities Clauses
Sources/Applications
Test
Unconstitutional Discrimination
Constitutional Discrimination
SOURCES/APPLICATIONS
14th Amendment - Migrants:
Right to Travel Across State lines and become a citizen of a new state
Article IV - Visitors (“Comity Clause”):
Protects discrimination against non-residents wrt rights/activities fundamental to the national union
TEST: Discrimination must SUBSTANTIALLY relates to a SUBSTANTIAL state interest.
UNCONSTITUTIONAL DISCRIMINATION
Commercial Licenses: higher price for non-residents
Commuter Tax: Only for non-residents
Abortion: Only for residents
Employment: Local employers must hire residents
CONSTITUTIONAL DISCRIMINATION
Recreational Licenses: Higher price for non-residents
In-State Natural Resources: State-owned natural resources
CXAL Law: Due Process Analysis
ANALYSIS
(1) Procedural Due Process, and
(2) Substantive Due Process
CXAL Law: Procedural Due Process
Protects (a) Persons (b) from deprivations of life, liberty, and property (3) without due process of law
PERSONS: All humans and corporations
DEPRIVATIONS
Life
Liberty: liberty, physical restraint, and physical punishment
Property: If state can take away without reason, there is no property interest. (property interests: public education; public employment (look to K); welfare; driver’s license)
DUE PROCESS
(a) notice
(b) hearing
Adequacy of notice/hearing:
(1) importance of protected interest
(2) risk of error if gov’t fails to provide requested additional procedural protection
(3) Burden on Government in providing such protection.
CXAL Law: Substantive Due Process
SCAMPERD - TTV
SEXUAL ORIENTATION: RBR- gov’t can’t criminalize
CONTRACEPTION
ABORTION: Regulation must not impose undue burden on woman’s right to choose abortion
MARRIAGE
PORN/POSSESSION OF OBSCENE MATERIAL: in one’s home (except: child pornography)
EDUCATION: Private Education; but gov’t can mandate kids get some kind of education
RELATIONS: can’t prohibits extended family from living in same household
DEATH: right to refuse treatment (not suicide/euthanasia)
TRAVEL: absolute: state to state. International: still DP right, but may be restricted
VOTING (see voting card)
TAKINGS (see takings card)
CXAL Law: DP Analysis of Voting Rights
If no specific provision applicable, use general DP
SPECIFIC PROVISIONS:
15th Amendment: No racial discrimination in voting
19th Amendment: No Sexual Discrimination in voting
24th Amendment: No Poll Taxes
26th Amendment: No age discrimination 18 and above
GENERAL PROVISION: Total Ban (strict scrutiny): certain people can't vote at all
Regulation of Process: Doesn’t ban category, but makes it harder to vote. Government must have an IMPORTANT interest and cannot create UNDUE BURDEN on voting right.
CXAL Law: DP Analysis of Takings (Eminent Domain)
If government takes land, it must pay just compensation.
DIRECT GOVERNMENT APPROPRIATION
gov’t takes property
REGULATORY TAKING: regulation is so onerous it is tantamount to a direct appropriation. Three types
(1) permanent physical invasion (no matter how minor)
(2) Deprivation of all Economically Beneficial Use
(3) Balancing Test Weighs Toward Taking
CXAL Law: Tiers of Scrutiny
RATIONAL BASIS
Plaintiff must show law/conduct is NOT RATIONALLY RELATED to ANY LEGITIMATE INTEREST
INTERMEDIATE SCRUTINY
Government must show law/act is SUBSTANTIALLY RELATED to an IMPORTANT state interest
STRICT SCRUTINY
Government must show law/act is NECESSARY to further a COMPELLING state interest.
CXAL Law: Rational Basis Review
Applications
Notes
Plaintiff must show that law/act is not rationally related to any legitimate interest.
Interest stated need not be actual governmental interest.
APPLICATION Default (disparate impact) Alienage (by congress) Illegal aliens (state action can't amount to immigration policy) Age Disability Economic Regulation Sexual Orientation
EXCEPTIONS TO DISPARATE IMPACT
Intentional Disparate Impact (Strict Scrutiny): law/act adopted with intent to achieve the disparate impact (mere knowledge insufficient)
Discriminatory Application: Non-discriminatory procedure applied in a discriminatory way
CXAL Law: Intermediate Scrutiny
Applications
Notes
Government must show law/act is substantiallyr elated to an important state interest
Stated interest must be the actual gov’t interest
APPLICATIONS
Sexual discrimination
Illegitimacy
Undocumented alien children
CXAL Law: Gender Based Affirmative Action
General Rule: constitutional if remedying past societal discrimination
CXAL Law: Strict Scrutiny
Government must show law/act is necessary to further a compelling state interest
Stated interest must be the actual gov’t interest
APPLICATIONS Race Total Voting Ban Domestic Travel Alienage/National Origin (by state gov't) Religion (Facial Discrimination)
NOTES
Schools have a duty to eliminate racial segregation where implemented to remedy past discrimination in that school system or a past form of de jure segregation (forced bussing is constitutional)
CXAL Law: Race-Based Affirmative Action
(1) remedying state’s own past discrimination: must tailor as closely as possible to benefit people actually affected by state’s past discrimination
(2) Diversity in Higher Education: Narrow Tailoring: race can only be one factor among many with no fixed weight (cannot be a point-based system)
CXAL Law: Exceptions to applying strict scrutiny for content-based speech regulation
C-GULC Content Neutral, Conduct Regulation Government as Speaker Unprotected Speech (HAFWOUD) Low-Value Speech (commercial; sexual) Content-neutral Time, Place, Manner
CXAL Law: Obscene Speech
(1) PRURIENT INTEREST, COMMUNITY STANDARDS: avg person applying contemporary community standards would find the work as a whole appeals to the prurient interests
(2) SPECIFICALLY DEFINED SEXUAL CONDUCT, PATENTLY OFFENSIVE: work depicts/describes in a patently offensive way (based on contemporary community standards) sexual conduct specifically defined by the applicable state law.
(3) WORK LACKS SLAPS: work, taken as a whole, lacks serious literary, artistic, political, or scientific value
CXAL Law: Low-Value Speech
COMMERCIAL SPEECH: For speech that is (a) not false, (b) not deceptive, and (c) not related to unlawful activity, regulation must
(1) serve SUBSTANTIAL gov’t interest;
(2) DIRECTLY ADVANCE that interest;
and (3) not be more extensive than necessary to serve that interest
SEXUAL/INDECENT SPEECH Fully protected (strict scrutiny), but its secondary effects may be regulated if the regulation (1) serves SUBSTANTIAL governmental interest; and (2) leaves open reasonable alternative channels of communication
CXAL Law: Conduct Regulation
Regulation of conduct, creating an incidental burden on speech is constitutional if regulation
(1) serves an IMPORTANT interests;
(2) its incidental burden on speech is no greater than necessary
CXAL Law: Time, Place, Manner Regulations
PUBLIC FORA: constitutional if regulation is
(1) content neutral;
(2) Narrowly Tailored to serve an IMPORTANT gov’t interest; and
(3) Alternative Channels of Comm’n left open
NON-PUBLIC FORA (rational basis review)
Regulation must be viewpoint neutral
If forum opened “w/o restriction” for the purpose of speech, it may create a public forum.
CXAL Law: When may a prisoner’s speech be limited
prisoners’ speech may be restricted if law is rationally related to a legitimate penological objective.
Criminal Law: Co-Felon Liability
IMJ (Agency Rule): ∆’s culpability limited to killings committed by co-felons
ISJ- culpability for non-felon killing another non-felon
Common Law: Culpability for all homicides
EXCEPTIONS:
Non-Violent Co-Felon (ISJ): Exemption for non-violent co-felon (not armed; did not participate; did not have knowledge)
Redline Limitation (IMJ of C/L): No culpability if non-felon kills a person with justification/excuse.
Deserving Victim Exception (ISJ of C/L): no culpability for death of a co-felon
Criminal Law: Defenses to Attempt
Nothing at C/L
Modern:
Abandonment: voluntary and complete abandonment
Legal Impossibility
Criminal Law: Defenses to Conspiracy
Withdrawal (C/L & MPC) Complete and voluntary withdrawal made timely to all co-conspirators. Defense to future crimes (under pinkerton doctrine)
Renunciation (MPC): (a) withdrawal, and (b) affirmative act to thwart the success of the conspiracy. Defense from future crimes and conspiracy itself
Criminal Law: Accomplices
Definition of Accomplice
Causation
Accomplice Liability
Defenses
DEFINITION
(a) ∆does some act (or omission) that facilitates principal’s commission of the attempt/crime, including encouragement, (b) with the PURPOSE to bring about the commission fo the crime
CAUSATION
No causation required. Not required that accomplice’s act was useful to bring about the crime.
LIABILITY
Culpable for crime he facilitated AND other crimes committed by the principal that are REASONABLY FORESEEABLE OUTGROWTHS of the primary crime.
DEFENSE–WITHDRAWAL
C/L: put principal on notice and nullify effect of prior assistance (severs only future liability)
MPC: either (1) nullify effect of prior assistance; (2) provide police with timely warning of perpetrator’s plan; or (3) make proper effort to thwart the crime
FRCP: When is citizenship determined for purposes of diversity jurisdiction?
At filing
FRCP: what is the AIC for diversity jurisdiction
OVER $75,000.00
FRCP: Removal Jurisdiction
Generally
Claims that cannot remove
Timing
GENERALLY
can remove if claim could have originally been brought there. All defendants must agree. Home state exception.
INSUFFICIENT CLAIMS
Counter, cross, and impleader claims cannot remove.
TIMING
Must file notice within 30 days after grounds to remove are apparent (i.e., SofP)
If Div/Juris, case must be removed within 1 year (unless bad faith).
FRCP: Personal Jurisdiction Analysis
Step 1: does state Long Arm Statute allow it?
Step 2: does CX allow it? (PJ Rarely Cause Severe Mental Strain)
FRCP: Minimum Contacts Analysis
(1) ∆has established minimum contact with teh forum state,
(2) the claim arises from that contact, and (4) jurisdiction will not offend “traditional notions of fair play and substantial justice.”
MINIMUM CONTACTS: ∆ purposefully availed himself to the protections and benefits of teh forum state.
ARISING FROM: contact must play a role in causing the lawsuit. ∆can reasonably anticipate being hailed into court there.
TRAD’L NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE
(a) burden on ∆;
(b) interests of forum state;
(c) π’s interest in obtaining relief;
(d) states’ shared interests in efficiency;
(e) shared policy interests of the states.
FRCP: General Jurisdiction
∆does “substantial business” in the state and
has “systematic and continuous contacts” with the state, so that
∆ is “essentially at home” in the forum
FRCP: Transfer of Venue
CONVENIENCE: (a) If case could have been filed in the new venue originally, and (b) transfer is necessary for convenience of parties/witnesses
AGREEMENT: All parties join request to transfer
INTEREST OF JUSTICE: πfiles in an inappropriate venue, court may either (a) dismiss the suit, or (b) transfer the case to a venue where the case could have been originally filed
FRCP: Amending Pleadings
AS OF RIGHT
Complaint: 21 days after Opp/Con serves answer or a motion to dismiss
Answer: 21 days after serving Answer
WITH PERMISSION
(1) Permission of opposing party/parties;
(2) Permission of court: court considers (a) reason for amendment (party’s fault); (b) if amendment will prejudice the other party.
FRCP:
- By when must you serve process?
- When must you serve an answer/pre-answer motion?
- If you serve a pre-answer motion which is denied, when must you serve answer?
- 90 days after filing complaint
- 21 days after receipt of complaint. 60 days if SofP is waived
- 14 days after notice of denial
FRCP: Mandatory Joinder
Case may proceed without necessary party, but must dismiss case if indispensable party can’t be joined
I. IS PARTY NECESSARY?
(a) PArty has interest that might be impaired if left out;
(b) complete relief cannot be issued in party’s absence; and/or
(c) current parties would be subject to duplicative/inconsistent liability
II. ABILITY TO JOIN: Destroys diversity Jurisdiction or no PJ over party
III. IS PARTY INDISPENSABLE?
(a) Prejudice to missing party;
(b) can prejudiced by be lessened by shaping the relief; and/or
(c) if case is dismissed, will πbe able to find relief in another forum?
FRCP: R26(f) Conference
R16(b) Conference
R26(f) CONFERENCE
must be at least 21 days before R16(b) conference.
Must submit plan to court within 14 days of conference
R16(b) Conference
Court may mandate R16(b) conference, but it must issue R16(b) scheduling order. Must be issued within 90 days of SofP or 60 days of ∆’s appearance, whichever is earlier.
FRCP:
- When are initial disclosures due
- When are Expert Disclosures due
- 14 days after R26(f) conference
2. At least 90 days before trial
FRCP: When is discovery of evidence an undue burden (and therefore, undiscoverable)
(a) discovery sought is unreasonably cumulative or can be obtained from a less burdensome source or in a less burdensome way, or
(b) seeking party already had ample opportunity to obtain the information, or
(c) burden or expense of proposed discovery outweighs its benefits
FRCP
Number of interrogatories
Number of Depositions
25 interrogatories
10 Witnesses for Depositions
FRCP: Timing for Discovery Mechanisms
30 days for all mechanisms
Mental/Physical Examination must be sought by court order
Depositions: must give reasonable written notice to all parties.
FRCP: Methods for voluntary dismissals
- Claimant files notice of dismissal before ∆ files answer (or motion for S/J)
- Claimant files stipulation of dismissal signed by all parties (settlement)
- Dismissal with permission of court; but, if ∆ has filed a CC, court will not dismiss unless CC can remain pending for adjudication
FRCP: Involuntary Dismissal
∆ may move to dismiss action (with prejudice) if π
(a) fails to prosecute case; or
(b) refuses to comply with court order or any FRCP
FRCP: Default Judgment (If ∆ appears but later fails to defend)
Must issue written notice of π’s application for default judgment SEVEN (7) days before application is heard.
FRCP: Summary Judgment
Standard
Timing
Materials relied upon
STANDARD: No genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law
TIMING: Before THIRTY (30) days after close of discovery
MATERIALS: Non-movant cannot simply rely on pleadings
May use pleadings, discovery, affidavits. evidence offered must be admissible at trial, even if not currently admissible.
FRCP: Time phrame for requesting jury trial
FOURTEEN (14) days after the filing of the last pleading directed to the jury-eligible issue
FRCP: Voir Dire/Juries
Size of Jury
Challenges for Cause
Peremptory Challenges
Verdicts prevails if _____ jurors agree
Size: 6-12
Challenges for Cause: unlimited
Peremptory Challenges: 3 each
Verdicts must be unanimous
FRCP: Renewed JMOL
Timing
Judge’s option if Renewed JMOL motion is made
28 days after JUDGMENT (not verdict)
Judge’s Options:
(1) Let verdict stand;
(2) Grant JMOL Motion (Judge must grant/deny new trial conditionally); or
(3) Order new trial (even if new trial motion not made)
FRCP: New Trial Motion
Timing
Grounds
TIMING: 28 days after JUDGMENT (not verdict)
GROUNDS
(1) Verdict against manifest weight of the evidence;
(2) Excessive Damages: “grossly excessive” or “shocks conscience” (new trial or remittitur);
(3) Procedural Error/Misconduct: (a) Error/Misconduct likely affected result, and (b) party timely objected to error
(4) Newly Discovered Evidence: (a) Party discovers evidence after verdict; (b) could not have been with reasonable diligence discovered before verdict; (c) not solely for impeachment; and (d) would likely change result of trial
FRCP: Motion for Relief from Judgment
Timing
Grounds
TIMING: reasonable time (after learning of grounds).
If for mistake, fraud, misrepresentation: no later than 1 year
GROUNDS
(1) Mistake, Inadvertence, or Excusable Neglect: usually for relief from D/J
(2) Newly Discovered Evidence: same analysis as with new trial
(3) Fraud, Misrepresentation, Misconduct
(4) Judgment is void: no SMJ or no PJ
(5) Judgment Already Satisfied
(6) Any other Reason that Justifies Relief
FRCP: Appeal
Timing
Must file notice of appeal with DISTRICT COURT within
(1) 30 days of judgment;
(2) 30 days of order that is subject of appeal; or
(3) within 30 days of the denied post-trial motion
Exception: 14 days of grant/denial of class certification
FRCP:
Res Judicata
Collateral Estoppel
RES JUDICATA
(1) Same Parties on Same Side of “V”;
(2) Claim arises from same Transaction or Occurrence; and
(3) Valid Final Judgment on the Merits
COLLATERAL ESTOPPEL
(1) Issue Litigated and Determined;
(2) Issue Was Essential To the Judgment;
(3) Valid Final Judgment on the Merits; and
(4) Full Fair Opportunity and Incentive to Litigate
FRE: When can evidence of sexual behavior/predisposition be admitted in a civil case
When probative value of the evidence SUBSTANTIALLY OUTWEIGHS the risk of unfair prejudice
Real Property: Estoppel by Deed
If Grantor transfers title to property they don’t currently own, but later obtains title, Grantee must go into court and assert claim to property. Grantor will be estopped from denying transfer.
BUT, if grantor transfers to a subsequent BFP, the subsequent BFP will prevail over the previous grantee.
Real Property: Shelter Rule
Shelter Rule
Reverse Shelter Rule
Applies to successors in interest
SHELTER RULE: a successor in interest (who doesn’t satisfy the recording statute) to a person protected by the recording statute is also protected.
REVERSE SHELTER RULE: If grantee’s successor doesn’t prevail under the recording statute, the grantee is also not protected.
Contracts: Exceptions to invalid “past consideration”
(1) Promise to pay debts barred by SOL, and
(2) promise to pay debts discharged in bankruptcy
promises must be in writing
Contracts: Material Benefit Test
ISJ- IN SOME JURISDICTIONS!
promise to pay past consideration enforceable if (a) promisee conferred benefit on promisor (not 3P) and (b) benefit is material
Contracts: Elements of Promissory Estoppel
(1) promise
(2) reasonably foreseeable Reliance
(3) actual reliance
(4) injustice without enforcement
Contracts: Exceptions to SOF Guaranty/Surety Category
(1) Creditor discharges original debtor on faith of the third party; or
(2) main purpose of guarantee is to protect guarantor’s own economic interest (“main purpose doctrine”)
Contracts: Duress
(1) a threat
(2) that is wrongful in nature
(3) no reasonable choice but to succumb to threat.
Pertaining to number 3, above: for economic duress, no adequate and reasonably priced substitutes for goods/services OR breach causes πto breach his own K
Torts: Negligent Infliction of Emotional Distress
Direct Action
Bystander Action
DIRECT ACTION:
(1) Zone of Danger, and (2) Physical Manifestation of emotional distress.
Exceptions: neg’l trasmission of telegram wrt death of a loved one; negl’l mishandling of a corpse
BYSTANDER ACTION
(1) πand person are closely related; (b) πwas present at the scene; (c) πpersonally observed or perceived event; and (d) πsuffered severe emotional distress
Torts: Negligence > Duty > Government at ∆ > Public Duty Doctrine
Gov’t agency not liable for failing to respond, unless
(1) πrelied on agency’s response;
(2) special relationship; or
(3) agency increased danger
Torts: Res Ipsa Loquitur
May infer breach if
(1) injury would not ordinarily occur in absence of negligence;
(2) fair probability ∆’s negligence is responsible for the injury-causing event; and
(c) πnot responsible for injury-causing event
CIVIL PROCEDURE > Impleader (Third-Party Actions) >
How long does a Defendant have to file an answer against an impleaded party?
14 days,
or else must get court’s permission
CIVIL PROCEDURE > Impleader (Third-Party Actions) >
Rules for claims by third-party defendant against third-party plaintiff
must file compulsory counterclaims
may file permissive counterclaims
CIVIL PROCEDURE > Impleader (Third-Party Actions) >
Rules for claims between 3P∆ and original plaintiff
Plaintiff MAY assert against 3P∆ any claim arising out of the T/O that is the subject matter of the π’s claim against the 3Pπ (original defendant)
Then, 3P∆ MUST assert any COMPULSORY COUNTERCLAIM it has against Original Plaintiff
