Feb '23

Question 1

elements of criminal conspiracy

Answer 1

A criminal conspiracy is an agreement between two or more persons by concerted action to commit a
criminal offense. If there is no ambiguity, the conspiracy was complete when the agreement
was made; no further act was required to effect it.

Question 2

how to withdraw from conspiracy

Answer 2

A co-conspirator may effectively withdraw from the conspiracy if he affirmatively informs the other conspirators of his
withdrawal from the conspiracy. This does not negate guilt for the conspiracy, but rather for liability of foreseeable acts performed in the commission of the crime.

Question 3

divorce and transfer on death deeds

Answer 3

a divorce that occurs after the execution of a valid transfer on death deed will essentially revoke the deed

Question 4

to revoke a will:

Answer 4

A prior will can be revoked in a number of ways, including by the execution of a new will or writing in the manner in
which a will is required to be executed, whether or not that document expressly revokes the prior will.

Question 5

future testamentary intent

Answer 5

facially, future intent does not count, but an argument can be made for it

Question 6

check

Answer 6

A check is an order instrument which
requires for there to be endorsement by the holder (e.g., a signature) and transfer to the subsequent party in order to
negotiate.

Question 7

holder rights

Answer 7

a holder (not a HDC) is entitled to enforce the payment of the check. However, a transferee for value fails to become a
holder because there was no endorsement, the transferee would have an enforceable right to achieve an unqualified
endorsement from the transferor. §8.3A-203(c). Note that there would not be negotiation until such endorsement is
actually made

Question 8

contract defenses against a holder

Answer 8

the drawer has a defense if the negotiable instrument was issued without consideration, which defense is available against
a holder

Question 9

can you make a motion to dismiss for lack of venue

Answer 9

no. Venue is not jurisdictional in Virginia and no
case shall be dismissed on that basis. See §8.01-258 and §8.01-264(A). However, a party may object to venue as
being improper venue. A defendant must file an objection to venue (not a motion to dismiss as Togo did here) within 21
days of service of process upon the defendant. In its pleading, a defendant must set forth where it believes venue to be
proper (Caroline County). The matter shall be heard promptly by the court.

Question 10

proper standing and naming for wrongful death suit

Answer 10

Every action for wrongful death must be filed in the name of the personal representative, not the deceased as in
this case.

Question 11

SoL for wrongful death

Answer 11

In Virginia, a wrongful death action
must be filed within two (2) years of the date of death (not two years from the date of the accident).

Question 12

attorney-client privilege

Answer 12

a lawyer shall
not reveal information protected by attorney-client privilege “or other information gained in the professional relationship
that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be
detrimental to the client…”
Although VRPC Rules 1.6(b) and 1.6(c) do allow (and sometimes require) attorneys to disclose confidential
information to prevent “substantial bodily harm to another or substantial injury to the financial interests or property of
another

Question 13

frivolous arguments

Answer 13

while a lawyer cannot make frivolous arguments in court, “[a] lawyer for the
defendant in a criminal proceeding … may nevertheless so defend the proceeding as to require that every element of
the case be established

Question 14

contingent fee in criminal cases?

Answer 14

no. Rule 1.5(d)(2) provides that a lawyer cannot collect a contingent fee “for representing a defendant
in a criminal case.

Question 15

fraudulent schemes + lawyers

Answer 15

Alice might have an obligation to disclose Clara’s fraudulent scheme if she fears that it would be
criminal and “reasonably certain to result in death or substantial bodily harm to another or substantial injury to the
financial interests or property of another…” See VRPC Rule 1.6(c)(1). Alice should therefore try to dissuade Clara from
moving forward with the scheme and might reference “relevant moral and ethical considerations in giving advice.”

Question 16

hearsay in VA

Answer 16

Hearsay is a statement, verbal or non-verbal, that is not made by the person testifying (the declarant) offered to
prove the truth of the matter asserted. Hearsay is generally not admissible unless it falls within a recognized exception
in Virginia.

Question 17

excited utterance

Answer 17

An excited utterance is an exception to the hearsay rule and is a
spontaneous or impulsive statement prompted by a startling event and made by a declarant with firsthand knowledge at
a time and under circumstances negating deliberation

Question 18

present sense impression

Answer 18

exception to hearsay: the statement was made contemporaneously with
the accident itself.

Question 19

admissibility of evidence determination

Answer 19

The determination of admissibility of evidence is within the sound discretion of the court. When hearsay is offered,
the court must first authenticate or identify the declarant.

Question 20

out of court statement hearsay exception

Answer 20

One exception to the hearsay rule in Virginia is that an out of court statement by a
criminal defendant is admissible as a party admission.

Question 21

statement

Answer 21

A statement can be an oral or written assertion, or nonverbal conduct, if it is intended as an assertion.

Question 22

video admissibility

Answer 22

Admissibility of the video, as a
witness to the event, would require authentication. on the preponderance of the evidence

Question 23

tort of assault

Answer 23

The tort of assault consists of the following elements: (1) a voluntary act; (2) intended to cause either harmful or
offensive contact or apprehension of such contact with another person; and (3) that causes reasonable apprehension of
imminent contact in the other person. Under the transferred intent doctrine, the intent to commit an intentional tort
against one person can be transferred to the person actually injured or to the tort actually committed. This doctrine
specifically applies to the intentional torts of battery and assault.

Question 24

mitigation of damages defense

Answer 24

This defense is not dispositive of the claim of assault, but could decrease the
damages recovered by Barb. Virginia law recognizes a plaintiff’s duty to mitigate damages in a personal injury action by
submitting to reasonable medical treatment.

Question 25

tort of battery

Answer 25

The tort of battery consists of the following elements: (1) a voluntary act; (2) intended to cause either harmful or
offensive contact; and (3) resulting in harmful or offensive contact to the plaintiff’s person. The contact may be caused
directly or indirectly. Similar to assault, the intent element can be satisfied by the transferred intent doctrine as
discussed in subpart (a)

Question 26

negligence

Answer 26

Four elements are required to establish a prima facie case of negligence: (1) a duty on the part of the defendant
to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury; (2) a
breach of that duty by the defendant; (3) the breach is the actual and proximate cause of the plaintiff’s injury; and (4) the
plaintiff suffered injury as a result. The proximate cause of an event is that act or omission which, in natural and
continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event
would not have occurred. A plaintiff must prove a connection sufficiently close or reasonably foreseeable that it is fair
and just to require the defendant to pay for the wrong done

Question 27

tort of IIED

Answer 27

The tort of intentional infliction of emotional distress (IIED) consists of the following elements: (1) a voluntary
act amounting to extreme and outrageous conduct; (2) committed intentionally or recklessly by the defendant; (3)
causing emotional distress that was severe. The conduct must transcend all bounds of decency and be utterly
intolerable in a civilized society. The distress must be such that no reasonable person could endure it. The transferred
intent doctrine generally does not apply to IIED. However, the Restatement (Second) of Torts recognizes that a close
relative of the victim who is present at the scene of the outrageous conduct may recover for IIED if the defendant knows
the plaintiff is a close relative and all other elements are met

Question 28

corporation formation

Answer 28

To form a corporation, they must file articles of incorporation with the State Corporation
Commission and pay the registration fee. §13.1-619. The Articles must include the name of the corporation, including a
designation that it is a corporation; the number of authorized shares; and the registered agent and office.

Question 29

LLC formation

Answer 29

To form an LLC, the parties must file articles of organization with the State
Corporation Commission and pay the required fee. §13.1-1011. The articles of organization must include the name of
the LLC, which must indicate that the entity is an LLC; the registered agent and office; and the principal office of the
LLC. See id. A LLC is able to convert into a corporation.

Question 30

GP formation

Answer 30

No filing is necessary to form a general partnership. §50-73.79. The parties simply
must intend and operate a business for profit as co-owners.

Question 31

LP formation

Answer 31

To form a limited partnership, the parties must file a certificate of limited partnership
with the State Corporation Commission and pay the required fee. §50-73.11.
The certificate of limited partnership must include the name of the limited partnership, including a designation
that it is a limited partnership; the registered agent and office; the principal office of the limited partnership; and the
name and address of each general partner. See id. A general partnership may be converted into a limited partnership
by approval of all of the partners and filing the aforementioned filing certificate

Question 32

investor protection in various types of businesses

Answer 32

In a general partnership, the partners have unlimited personal liability for the debts of the partnership. 50-73.96.
Thus, if the investors choose to operate their business as a general partnership they each will be jointly and severally
liable for the debts of the business.
A limited partnership has two classes of owners, limited partners and general partners, and the limited
partnership must have at least one general partner and at least one limited partner. §50-73.1.
Limited partners enjoy limited liability and typically are not liable for debts of the partnership; however, general
partners have unlimited personal liability for debts of the partnership. In Virginia, the general partner may be a limited
liability entity, so the investors could effectively limit their personal liability for business debts by forming another limited
liability entity, e.g. a corporation or an LLC, to serve as the general partner in a limited partnership.
In a corporation, shareholders generally are not personally liable for debts of the corporation. §13.1-644. This
limited liability protection is not absolute, however, and one exception is piercing the corporate veil. See Dana v. 313
Freemason, A Condo. Ass’n., Inc., 266 Va. 491, 587 S.E.2d 548 (2003). A court can disregard the corporate entity and
hold shareholders personally liable for debts of the corporation if the shareholders fail to observe the separateness of
the corporation (i.e. alter ego) and use the corporation to perpetrate fraud or injustice. Thus, if the investors choose to
organize their entity as a corporation, they should be advised to follow corporate formalities and not engage in fraud to
ensure that they maintain their protection from personal liability for debts of the business
In an LLC, members also enjoy limited liability and are not personally liable for the debts of the business. §13.1-
1019. As with a corporation, however, the members of an LLC can lose limited liability protection if they fail to treat the
LLC as a separate entity and misuse the limited liability form to perpetrate a fraud or injustice.

Question 33

P/L distributions

Answer 33

Profits and losses are distributed as follows:
(1) Corporation – The owners, or shareholders, would be issued shares of stock based on their percentage of
ownership interest in the corporation. §13.1-638. Directors then may issue dividends, generally payable in cash, to the
shareholders based on the number of shares they hold. Corporate shareholders do not bear losses directly, however,
the value of their shares could be affected by losses.
(2) Limited Liability Company – Unless the members have agreed otherwise, profits and losses are allocated
according to the value of each member’s contributions to the company. §13.1-1029.
(3) General Partnership – The default rule is that partners in a general partnership share profits equally and
they share losses the same way that they share profits (thus, equally if they have not agreed otherwise). §50-73.99.
(4) Limited Partnership – In a limited partnership, the default rule is that profits and losses are allocated
according to the value of each partner’s contributions to the partnership