Extra Issues Flashcards
Rules of Evidence: 804(a)
804(a) Declarant is unavailable (SAILS) 1. States a privilege 2. Absent from JDX 3. Ill or dead 4. Lacks memory 5. Stubbornly refuses to testify
Rules of Evidence: 804(b)(1) to (5)
804(b) [FD SFF)
- Former testimony
- Dying declaration
- Statement against interest
- Personal/Family
- Forfeiture by Wrongdoing
Advertisements vs. Invitations to Place Bids
To place bids = offers (if they have all of the essential terms)
Worker’s Comp:
1) Partial disability
2) Medical Exam
1) Accepting lesser paying jobs at jobs that you have the training and qualifications to do, and that your injuries do not preclude you from doing.
2) If you don’t do it, you could forfeit your right to recovering benefits.
Guilty Plea Agreements
A guilty plea is a voluntary, intelligent, knowing waiver of certain constitutional rights
- Defendant must be fully aware of the consequences of his plea
Court cannot accept a guilty plea unless it’s convinced the plea was made knowingly and voluntarily.
Illusory Plea Bargain: Defendant does not receive a benefit from the bargain.
- Or, it had a benefit of lesser value than the defendant was led to believe.
Sentencing Agreements
A sentencing agreement is an agreement between the parties concerning a specific sentence.
The agreement must be stated on the record or in writing, and be signed by the parties
The court can modify a judgment due to an error where the refusal to would be inconsistent with substantial justice.
- Dissatisfaction with a given sentence is not a valid basis for modification.
Do you automatically have dissenters rights if the articles are being amended?
A shareholder may dissent and is entitled to receive payment for his shares, if amending the articles:
Materially alters or abolishes a preferential or redemption right of the shares
Restrictions on Share Transfer
MI law explicitly permits restrictions on the transfer of shares of a corporation if the restriction “obligates the holder to offer to the corporation OR to any other holders of shares of the corporation” a prior opportunity to acquire the restricted instruments.
Amending Articles
A corporation may amend its articles of incorporation if “the amendment contains only provisions that might lawfully be contained in the original articles of incorporation filed.
If the board proposes it to the shareholders, it means that the board approved it.
NOTE: Make sure you talk about shareholders’ notice.
Waiving Right to Interpreter
What if the witness’s interpreter sucks and is not translating everything?
Court must provide an interpreter or obtain the defendant’s personal and informed waiver (voluntary, knowing, and intelligent).
Valid Waiver: Defendant has specific knowledge of the constitutional right, and intentionally abandons its protection.
The interpreter must translate the questions of lawyers and responses of witnesses as they occur.
- Otherwise, it deprives the defendant of due process and the right of confrontation.
Translation can have occasional lapses, but must adequately translate testimony as an English-speaker would hear.
Nonliteral translations may be inaccurate/inadmissible, or violate confrontation clause
- This right is impaired if witnesses’ answers are not accurately translated
Custody
- Physical vs. Legal
- Granting Joint Custody
Physical: right to have child live with them
Legal: decision-making power for important decisions.
Joint Custody
Only viable for parents who are willing and able to cooperate with each other to make decisions for the child.
Court will consider any parental conflicts, best interest factors, and whether the parents will be able to agree.
If party’s request joint custody, the court is bound to consider it and should state any reasons for granting/denying it on record.
Garage Keeper’s Lien Act
Requires a contract (express, implied) between a garage keeper and vehicle owner.
- When formed, a lien is created and attached for the money due from the vehicle owner for the storage/keeping of the vehicle/cost of repairs/estimated repairs/etc.
Vehicle owner cannot recover the vehicle until they pay the amount required to the garage keeper.
A lienholder can charge $10/day (maximum) for storage, unless otherwise stated.
Garage keeper cannot sell the vehicle without having a public sale
- To have a public sale, they must apply to the dept. of state for certificate of foreclosure, provide notice, and state the time, date, place the vehicle will be sold
How is Child Support Determined?
MI uses a child support formula. The court must order support for the amount determined by the formula unless it would be unjust or inappropriate (based on resources and needs)
If the court deviates, it must state:
- Amount determined by formula
- Amount of deviation
- Value/other support in lieu of child support (including alimony)
- Reasons the formula amount is unjust or inappropriate
Can a child support order be modified?
Yes, if the moving party can show proper cause or a chance in circumstances.
It can only be retroactively modified if:
- There was fraudulent reporting of income
- Retroactively modified from date of service on non-moving party on petition to modify.
Domestic Relations: Attorneys Fees
A party can request the court order attorneys fees related to the action.
A party who requests attorneys fees must show:
- They are unable to bear the expense, and
- The other party is able to pay.
