Feburary 2018 Virginia Bar Exam

Question 1

Criminal Constitutional

Probable Cause

Answer 1

When the police officer has a reasonable basis for believing that a crime is being committed or that there is evidence of a crime in the place to be searched.

Question 2

Reasonable Suspicion

Terry v. Ohio.

Answer 2

Generally, a quantum of proof sufficient to justify an objectively reasonable person in suspecting, but not necessarily believing, that someone has committed, is committing, or is about to commit a crime. Reasonable suspicion is usually the lowest quantum of proof that the law will recognize for any purpose. It is sufficient to justify brief investigatory detentions, but not full-blown arrests, by the police.

A level of proof that would cause a reasonably prudent person to suspect that someone has commmiting or is about to commit a crime.

Question 3

Terry Stop.

Answer 3

A Terry stop is another name for stop and frisk; the name was generated from the U.S Supreme Court case Terry v. Ohio. When a police officer has a reasonable suspicion that an individual is armed, engaged in, or about to be engaged in criminal conduct, the officer may briefly stop and detain an individual for a pat-down search of outer clothing. A Terry stop is a seizure within the meaning of Fourth Amendment.

In a traffic stop setting, the Terry condition of a lawful investigatory stop is met whenever it is lawful for the police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police do not need to believe that any occupant of the vehicle is involved in criminal activity.

Question 4

Terry Stop

The Reasonable Suspicion Standard

Answer 4

When and officer has a reasonable suspicion (a reasonably suspects that someone is committing or has commited a crime), they can briefly stop and detain an individual for a search of the outer clothing.

Question 5

Consent excuses the need for probable cause and reasonable suspicion

Answer 5

totality of circumstances

Examples of factors that would cause consent to excuse the need for probable cause and reasonable suspicion.
- there was no threat made
- no demand to search,
- not form restraint.
-

Question 6

Miranda Warning

Answer 6

You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to consult with a lawyer before questioning and to have a lawyer present during questioning. If you cannot afford a lawyer, one will be appointed to represent you free of charge prior to any questioning.

Question 7

Miranda Two Part Test for determining whether statements were made without Miranda Warnings.

Answer 7

1. The defendant must be in custody
2. the defendant statements must have been made in response to an interrogation

EXAMPLE FROM THE ESSAY
- Being told that he was going to speak to him in his police car - indication that he is not free to leave
- going to take him in
- A indirect or direction question regarding how he got a certain item by a police officer.
- Something that the officer should have understood that a reasonable person would understand to be an interrogation.

Question 8

Custody under Miranda

Answer 8

The Miranda rule applies only when there is both custody and interrogation. If a suspect is not in “custody,” no Miranda rules ever apply. The Supreme Court has concluded that, while a person might not be free to leave, they may also not be in custody under Miranda, such as in a common traffic stop: “An individual is in custody for Miranda purposes when, under the totality of the circumstances, a suspect’s freedom of action is curtailed to a degree associated with formal arrest” (Berkemer v. McCarty, 468 U.S. 420 (1984)).

An individual is in custody under Miranda when, under the totality of circumstances, the suspect’s freedom of movement is curtailed to a degree associated with formal arrest.

Question 9

VA Civ Pro and Creditor Rights

What is an interrogation under Miranda.

Answer 9

The Court stated, “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id …

an interrogation that includes expressed and implied questions as well as any words or actions on part of the police officers that officers would know is likely to elicit a incriminating response from the suspect.

In a police dominated atmosphere.

Question 10

Custody and Interrogation under Miranda

Two Factor Test

When does the Two Factor Test apply

Answer 10

The two factor test applies when the defendant is in custody and that the statement was made under interrogation.

A defendant is in custody when under the totality of circumstances he wasn’t free to leave

A defendant is under interrogations - when he is in custody and questioned by the police. These questions can include direct questions or actions or words by the police that they knew would likely trigger an incriminating response by the defendant.

Failure to provide Miranda Warning or abide by Miranda warning would cause the evidence to be suppressed.

Question 11

When an suspect under interrogation invokes his right to an attorney what must happen?

Answer 11

Interrogation of the suspect must cease.

Question 12

What is sufficient to attach a judgment lien on a residence which is in a jurisdiction other then the one in which the judgment is located?

Answer 12

An abstract of judgment from a VA court in one jurisdiction, docketted in a VA circuit court of another jurisdiction will create a judgment lien on any real estate owned by the judgment debtors in the jurisdiction where the judgment was recorded.

Question 13

When a property is owned by tenants by the entirety, can a creditor of one tenancy to the entirety reach the property?

Answer 13

No, so long as this tenancy continues

Question 14

Under VA Code 6.2-606
a debtor’s interest in a bank account in joint names can be reached.

And the reason why is that

Answer 14

the ownership of a joined bank account it in proportion to the next contributions by each to the sums on the deposit.

Except for a joint account between two persons married to each other. As the amount would belong to each other equally unless, there is clear and convincing evidence of a different intent.

Question 15

liens on Motor Vehicles

Answer 15

liens are perfected by having the lien noted on the title to the vehicle by registering the security interst with the DMV not filing a financing statement.

Motor vehicles are specifically exempted from normal UCC filings.

Thus, Bank

Question 16

Real Property and VA. Civil Procedure.

What supports a prima facie case for partition by sale of the real property.

Answer 16

When the property isn’t held tenants by the entirety but as tenants in comon

thus the property would be subject to partition.

The first question would be whether the property can be divided in kind. dividing the real property and improvement equally among the tenants in common.

This is unlikely if not impossible due to being a home rathe then land. Also, the development includes a garage and a apartment building. property could not be divided in kind more certain.

Question 17

A prima facie case for partition in kind.

Answer 17

a physical division of the property between the owners.

Question 18

in regard to a partition by sale action, does a tenant who placed improvement upon common property at his own expense entitled to compensation.

Answer 18

Yes,

the money would be deduced from the other side’s share of the proceeds.

Question 19

What is the usual process for a partition by sale action.

Answer 19

usually, the proceeds of the sale are divided between the parties.

Hwoever, there would be deductions for improvements by all parties.

Question 20

Corporations

At Will employment Doctrine

A defense to improper discharge of employment

Answer 20

VA is a at will employment jurisdiction. Under the doctrine of at will employment, an employment contract for an indefinite perior is terminable at any time, after reasonable notice, by either party for any reason or no reason at all.

Question 21

Public Policy Exception to the At Will Employment Defense

Answer 21

There are exceptions to the at will employment doctrine. If the employee was fired in violation of public policy.

Question 22

Under VA Code 13. 1-32
The rights of a shareholder to a vote is?

Answer 22

A shareholder is entitled to one vote, for each outstanding share of stock held, on each corporate matter submitted to a vote at a shareholder meeting.

This provision contemplates that shareholder’s right to vote shall be exercised free of duress and intimidation from corporate management.

To effectuate the statutory goal and public policy, the shareholder must be able to exercise this right without reprisal from corporate management, which happens also to be the employer.

This right is conferred by statute is in furtherance of established public policy, the employer may not lawfully use the threate of discharge at will employee to control the otherwise unfettered discretion of a shareholder to vote freely his or her stock in the corporation.

Question 23

Tort claim of Conspiracy to breach a contract elements

Answer 23

This is recognized in VA.

The plaintiff must prove that there was a conspiracy to procure the breach of contract and that prusant to such conspriacy, the contract was breached.

It requires two persons.

There was an agreement between two or more people to procure the breach of the contract ant pursuant to that agreement, the contract was breached.

Question 24

Agency Law

Tort Battery

Answer 24

Battery is the intentional infliction of offensive or harmful contact to another person.

Need to be the actual and proximate cause of the plaintiff’s injury.

Question 25

Tort Assault

Answer 25

an act by the defendant that creates an reasonable apprehension of an attempted battery or (an act intended to cause harmful or offensive contact to another person)

Needs to be the actual and proximate cause of the injury.

Question 26

Respondeat Superior.

Answer 26

Employer would be liable for the actions of the employee committed within the scope of employment

Scope of employment is defined as actions or activities that an employer could reasonably expect his employee to perform in the course of his duties.

to secure the interests of the employer.

Question 27

When is someone liable for punitive damages

Answer 27

Punitive damages may be recovered for willful or wanton conduct or such recklessness as evidences a conscious disregards for the safety of others.

RECKLESSNESS

Question 28

The duty of care of bus drivers

Answer 28

Bus drivers, and other common carriers, are required to use the utmost care and diligence when working to ensure the safety of their passengers. This heightened standard of care goes beyond the typical negligence doctrine that is applied to personal injury claims.

A duty of utmost care and diliegence to avoid unreasonable harm and injury to their passengers and those in the zone of danger of their driving.

Question 29

Respondeat Superior

Answer 29

An employer is liable for the tortious conduct of their employees committed in the scope of employment.

Scope of employment is the range of actions or activities done expressly or implicitly for the employer benefit.

Question 30

VA Civil Procedure and Personal Property Gifts

The best legal action to file to avoid a lawsuit by another party in regards to property is a Interpleader

Answer 30

Complaint in the circuit court to interplead their claims pursuant to VA CODE 8.01-364

Question 31

§ 8.01-364. Interpleader.

Answer 31

§ 8.01-364. Interpleader.
A. Whenever any person is or may be exposed to multiple liability through the existence of claims by others to the same property or fund held by him or on his behalf, such person may file a pleading and require such parties to interplead their claims. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant in an action who is exposed to similar liability may likewise obtain such interpleader. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in § 8.01-5.

B. The remedy herein provided is in addition to and in no way supersedes or limits the remedy provided by any other section of this Code.

C. In any action of interpleader, the court may enter its order restraining all claimants from instituting or prosecuting any proceeding in any court of the Commonwealth affecting the property involved in the interpleader action until further order of the court.

Such court shall hear and determine the case and may discharge the appropriate party from further liability, make the injunction permanent, and make all appropriate orders to enforce its judgment.

D. A person interpleading may voluntarily pay or tender into court the property claimed, or may be ordered to do so by the court; and the court may thereupon order such party discharged from all or part of any liability as between the claimants of such property.

Question 32

Interpleader VA LAW

Answer 32

Whenever someone might be exposed to multiple liability through multiple claims to the same property or funds held by him

this person may file a pleading and require the parties to interplead their case

The court may enter a order restraining all claimanat sfrom instituting or prosecuting any proceedings in any court of the commonwealth affecting the property involved in the interpleader acitonuntil further order of the court.

Question 33

Intestate distribution when there is only one sibling.

Answer 33

All to the sibling.

Question 34

Inter Vivos Trust.

Answer 34

Need to be a present transfer of property and an intent to create a trust.

Oral trust requires clear and convincing evidence.

Grantor

Trustees a

and Beneficiaries

Question 35

Gift Causa Mortis

Answer 35

The attempted gift was made in contemplation of imminent death.

Present donative Intent (an intent to transfer the item immediatley, not after death)

Valid Delivery

Valid Acceptance

the gift was made in contemplation of imminent death that is likely to occurr

Signature included

Delivery requires more than a death bed utterance

Question 36

Domestic Relations

What are the grounds for a no fault divorce in VA

Answer 36

On the other hand, to get a “no-fault” divorce in Virginia, you only need to prove:

that you’ve been separated for at least a year, or
if you and your spouse don’t have any minor children together AND you’ve both signed a Separation Agreement – that you’ve been separated for at least 6 months.

you have been separated for one year

Or if you don’t have minor children and you both sided a separation agreement

6 months

Question 37

Do Sexual Encounters between separated spouses postpone the permitted filing dates.

Answer 37

No, unless they were done with the intent to resume cohabitation.

Question 38

How does one file a No Fault Divorce

Answer 38

If the parties had been living apart for one year without cohabitation with no interruptions.

Or, if they have no minor children and signed a separation agreement. they only need to wait 6 months

but in any case, there needs to be an intent of at least one of them that the separation be permanent.

Evidence that the party intended to get divorce.

Question 39

The need to pay Child Support for a Child that may not be the party’s biological child.

Answer 39

If the Child is presumed to be his child, he would be obligated to pay child support until the court relieves him of that obligation.

Due to the child being named as the father on the birth certificate.

Question 40

How does one challenge paternity under VA Statute

Answer 40

Through Genetic Testing with 98 percent probability of parentage.

Question 41

§ 20-49.1. How parent and child relationship established.

Answer 41

1. By genetic testing with 98 percent probability
2. by a voluntary written statement by father and mother
3. lawful adoption

Question 42

how to file for a divorce

Answer 42

in the circuit court of the county and city where he and his spouse last cohabited together as husband and wirfe. or the city or county where the wife resides.

Question 43

VA . Civil Procedure and Contracts

What is needed for valid personal jurisdiction

Answer 43

the VA Long Arm Statue and the Due Process Clause from the US Consitution must be met

Question 44

VA Long arm statute

Answer 44

§ 8.01-328.1. When personal jurisdiction over person may be exercised.
A. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s:

1. Transacting any business in this Commonwealth;
2. Contracting to supply services or things in this Commonwealth;
3. Causing tortious injury by an act or omission in this Commonwealth;
4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth;
5. Causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when he might reasonably have expected such person to use, consume, or be affected by the goods in this Commonwealth, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth;
6. Having an interest in, using, or possessing real property in this Commonwealth;
7. Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting;

Question 45

Due Process Clause

Answer 45

Whether a court can exercise jurisdiction over a non resident is based on the minimum contacts test.

International Shoe.

There must be sufficient contacts between the forum state and the defendant that meet the standards of fair play and substantial justice.

To the point that the Defendant could reasonably expect to be charged with a lawsuit based on his contacts with the state.

Question 46

What are moveable Goods under the UCC

Answer 46

Goods that are movable at the time of identification under the contract.

Question 47

§ 8.2-509. Risk of loss in the absence of breach.

Answer 47

This applies when the contract itself doesn’t allocate risk of loss and there was no prior breach of the contract.

Question 48

FOB OR FREE ON BOARD CONTRACT

Answer 48

A FOB (free on board) contract is where the seller has the duty to deliver the goods on board ship at his own expenses for carriage to the buyer.

FOB shipment: risk of loss shifts when the seller delivers the goods to a carrier.

FOB destination: risk of loss shifts when the carrier delivers the goods to the buyer’s place of business.

Question 49

Free on Board shipment contract

Answer 49

Risk of loss passes when the goods are delivered to carrier

Question 50

Free on board Destination contract

Answer 50

risk of loss passes when the goods are delivered to the buyer’s place of business.

Question 51

§ 8.2-509. Risk of loss in the absence of breach.

Answer 51

§ 8.2-509. Risk of loss in the absence of breach.
(1) Where the contract requires or authorizes the seller to ship the goods by carrier:

(a) if it does not require him to deliver them at a particular destination, the risk of loss passes to the buyer when the goods are duly delivered to the carrier even though the shipment is under reservation (§ 8.2-505); but

(b) if it does require him to deliver them at a particular destination and the goods are there duly tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are there duly so tendered as to enable the buyer to take delivery.

(2) Where the goods are held by a bailee to be delivered without being moved, the risk of loss passes to the buyer:

(a) on his receipt of possession or control of a negotiable document of title covering the goods; or

(b) on acknowledgement by the bailee of the buyer’s right to possession of the goods; or

(c) after his receipt of possession or control of a nonnegotiable document of title or other direction to deliver in a record, as provided in subsection (4) (b) of § 8.2-503.

(3) In any case not within subsection (1) or (2), the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise the risk passes to the buyer on tender of delivery.

(4) The provisions of this section are subject to contrary agreement of the parties and to the provisions of this title on sale on approval (§ 8.2-327) and on effect of breach on risk of loss (§ 8.2-510).

Question 52

Risk of Loss in the Absence of Breach

Answer 52

the FOB terms triggers by requireing the seller to ship the goods by seller

FOB City makes this a shipment requirement.

Meaning that the Seller must at that place ship the goods in the manner provided for in 8.2-504.

Shipments contracts are goven by 8.2-509(1)(a).

the risk of losses pass to the buyer when the carrier reiceves the countertops from ACC

any damage in transit goes to the buyer.

Question 53

§ 8.2-504. Shipment by seller.

Answer 53

Where the seller is required or authorized to send the goods to the buyer and the contract does not require him to deliver them at a particular destination, then unless otherwise agreed he must

(a) put the goods in the possession of such a carrier and make such a contract for their transportation as may be reasonable having regard to the nature of the goods and other circumstances of the case; and

(b) obtain and promptly deliver or tender in due form any document necessary to enable the buyer to obtain possession of the goods or otherwise required by the agreement or by usage of trade; and

(c) promptly notify the buyer of the shipment.

Failure to notify the buyer under paragraph (c) or to make a proper contract under paragraph (a) is a ground for rejection only if material delay or loss ensues.

Question 54

Local Government

Affirmative Defenses to be raised in an ordinary negligence claim

Answer 54

Assumption of risk - when the defect was open and obvious and the plaintiff knowingly and voluntarily assumed the risk of damages.

Lack of notice - a muncipality must have actual or constructive notice of a defect on public property in time to remedy the defect before liabilty attaches. A plaintiff must show more then that a defect on public property has come into being and caused the plaintiff’s injury. If the defect had been there long enough, there may be constructive notice. When a defect is such that it developed recently and suddenly and evidence to the contrary is lacking, constructive notice will not be inferred.

Existence of a defect for one or two days does not constitute constructive notice as a matter of law.

contributory neglience - the plaintiff would be contributorily negligence and can’t recover for failure to see conditions that were open and obvious and by exercise of ordinary care could have been avoided.

Question 55

Assumption of Risk

Answer 55

There are two elements of assumption of risk they must prove: The victim fully understood the nature and severity of the risk involved; and. The victim chose to participate in the activity anyway, accepting the risk voluntarily.

the plaintiff fully understood the nature and severity of the danger involved and chose to participate or expose herself anyway. Accepting the risk voluntairly.

Question 56

Lack of Notice

Answer 56

According to VA Statute, localities and municpaliites must have actual or constructive notice of the defect on public property before any liability attaches. A plaintiff must show more then that the defect on public property came to being and caused the injury.

If the defect had been on public property for long enough. It will be held that the locality would have had constructive notice. but it more be more then just one or two days.

Question 57

Contributory Negligence

Answer 57

When the Plaintiff failed to use ordinary care to avoid an open and obvious danger or defect on public property, then the plaintiff would be held to be contributorily negligent.

For example, the moldy substance on the court was an open and obvious danger.

Question 58

City’s statutory immunity under VA Code 15.2-1809

Answer 58

According to VA Code, cities and other such localities are immune to simple negligence claims in regard to the operation of public facilites like pools, parks, playgrounds, skateboard facilites and recreational facilities.

Question 59

Notice of Claims Requirement under VA CODE 15.2-209

Answer 59

A plaintiff seeking to filing a negligence claim must file the claim within 6 months of her accident. Her written statement must include the time, place, manner of injury. And it must be filed with the chief executive of the locality in question.

It would be considered filed when it is was received in the office of the offical to whom the notice is directed.

The burden of proof is on the claimant to establish the receipt of the notice.

mandatory

Question 60

Demurrer pleading

Answer 60

A pleading that challenges the legal sufficiency of the other party’s pleading
and ask the court for a judgment.

Question 61

Gross Negligence

Answer 61

A degree of negligence that shows an utter disregard of prudence amounting to a complete neglect for the safety of others.

A utter violation of the legal duty respecting the rights of others and an absence of even slight care.