Final Review Flashcards
When does a party have the right to appeal an error in jury instruction?
The party must object on the record before the instructions are given.
When does assumption of the risk preclude a SL claim?
If the π (1) knows of and appreciates the danger justifying imposition of SL and (2) voluntarily exposes himself to such danger
When are prior inconsistent statements made under oath at a prior trial or proceeding considered nonhearsay?
As long as the declarant is now testifying and subject to cross
What is inadmissible under the Confrontation Clause?
Prior “testimonial” evidence is inadmissible if:
(1) the declarant is unavailable; and
(2) the defendant had no prior opportunity to cross-examine the declarant.
What is sequestration?
At the request of either party, or on its own motion, the court must exclude Ws from the courtroom. Exceptions: (1) ∆ and (2) persons essential to the presentation of the party’s case
What is a PF case for strict products liability?
(i) the defendant is a commercial supplier,
(ii) the defendant produced or sold a defective product,
(iii) the defective product was an actual and proximate cause of the plaintiff’s injury, and
(iv) the plaintiff suffered damages to person or property.
Delegation vs. assignment
An assignment occurs when the delegate promises that she will perform the duty delegated and the promise is supported by consideration.
If it’s merely a delegation, the obligee can’t compel the delegate to perform.
When may a clerk enter a default judgment instead of a judge?
Only when it is for a sum certain
What is the doctrine of avoidable consequences?
An individual cannot recover for losses that might have been prevented thru reasonable efforts to avoid further injury
What is the remedy when a party performs all of a K, except a small portion which was excused by impossibility?
The contract price, minus the allocable cost and profit, so that they don’t benefit from being excused from performing.
What is the effect of judicial notice of a fact made by prosecutor?
Judge must instruct jury that the fact that has been judicially noticed may be accepted by it as conclusive, but that the jury is not required to do so.
When may motion for JMOL be made?
Any time before submission of the case to the jury
In fed court, what is the burden of proof for affirmative defenses?
∆ bears the burden of proving affirmative defenses by C&CE
When may a party found strictly liable for a product defect seek indemnification?
When strict liability applies, each supplier of a defective product is liable to an injured person, but each supplier has a right of indemnification against all previous suppliers of the defective product in the distribution chain, with the manufacturer of the defective product ultimately liable.
What is required for a judgment creditor to put subsequent BFPs notice of its interest?
“Filing” a judgment lien is the same as recording. As such, any subsequent purchasers or lenders are charged with constructive notice.
When is an easement for public use created?
When a dedicator expresses intention for part of his land to be used for a public purpose, and acceptance by public adoption is manifested.
A reversion interest remains in the grantor.
When may a court enter judgment for a party on partial findings?
A court may enter a judgment on partial findings after allowing the other party to be fully heard, and if the other party has not sustained their evidentiary burden.
How do easements by necessity arise?
When the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road
What is Congress’s power to confer standing?
Congress may confer SMJX in fed district courts to challenge the constitutionality of fed statutes, but may not grant automatic standing – there must still be a case or controversy
What is use immunity?
Protects W against gov’s use of his or her immunized trstimony in prosecution of W, except in subsequent prosecution for perjury or false testimony
What is depraved heart murder?
A type of common law murder. It is an unintentional killing resulting from conduct involving wanton indifference to human life and conscious disregard of an unreasonable risk of death or SBH. It is absent any defense negating ∆’s awareness of the risk.
What is the scope of a preliminary injunction?
A prelim injunction will apply to a party, as well as that party’s officers, servants, agents, employees, and attorneys.
How may a party refresh a witness’s recollection?
When a witness does not have sufficient present recollection of a matter about which she is to testify, she may be shown virtually anything in an attempt to refresh her recollection so that she may then testify from memory as to the relevant facts. If her memory is not refleshed by the writing, the writing may be admissible if it qualifies as a past recollection recorded.
What is the effect of participation in a criminal conspiracy on a person’s property rights against a co-conspirator?
A person participating in a crim conspiracy does not forfeit all of his property rights simply b/c he intends to violate the property rights of another
What duty does a person have if they promise to get aid for someone in need?
If an individual is under no duty to act, but decides to act by promising to get aid for someone in need, he is under no duty to actually deliver on the promise either, even if the victim detrimentally relies on the promise to help.
When is a co-tenant entitled to proceeds from rental value or net income received from jointly owned property?
When other tenant in possession has ousted co-tenant, or when tenant in possession received rents from TP who actually occupied the land
What additional evidence must be shown for authentication when the evidene is of a type that is likely to be confused or easily tampered with?
Proponent of the object must present evidence of chain of custody. Proponent must show that the object has been held in a substantially unbroken chain of possession (adherence to some system of identification and custody)
What duty does a business owe to an invitee in peril when it did not create the peril?
Business and its agents have a duty to intervene and use reasonable care to aid and assist an invitee in peril.
When may a party file a cross-claim against a co-party?
If it arises from the same transaction or occurrence as either the original complaint or a counterclaim, or relating to property that is the subject matter of the transaction
What are the requirements for affidavits supporting / opposing a motion for SJ?
When assessing a motion for SJ, a supporting/opposing affidavit must be made on personal knowledge, and set out facts that would be admissible in evidence.
Does a judgment creditor qualify as a subsequent purchaser for value under a recording statute?
Only if they purchase the property at a judicial sale. Mere entry of a judgment ≠ purchase for value.
When is a party’s failure to respond to an accusation considered a statement?
1) party against whom the evidence is offered heard, understood, and was capable of responding, and
2) reasonable person in party’s position would have responded (i.e. denied the accusation) – most common in crimes like rape/murder
When is venue proper in the district where ∆ resides?
If ALL ∆s reside in the same state
What is the difference between common law conspiracy and modern conspiracy?
At CL, conspiracy is just an agreement by 2 or more people to commit a crime. In modern law, there is also an overt act element.
Who can enforce rights against an obligor once an assignment is made?
An assignor may not enforce rights against an obligor that have been previously assigned. An assignment creates privity of K between the obligor and the assignee while extinguishing privity between obligor and assignor. The assignee alone is entitled to performance under the K.
What is a buyer’s remedy when he properly rejects a nonconforming shipment?
The buyer is entitled to the difference between the K price and either the market price or the cost of buying replacement goods, plus incidental and consequential damages.
When is a principal vicariously liable for the acts of an independent contractor?
In general, a principal will not be vicariously liable for tortious acts of an independent contractor. The 2 broad exceptions are: (i) the independent contractor is engaged in inherently dangerous activities (ii) the duty, because of public policy considerations, is simply nondelegable
When may police seize evidence not specifically named in a search warrant?
The police can only take property other than what is named in the warrant if it is automatically apprent that the item is contraband. Further inspection is not allowed.
What duties does a property owner or occupier owe to trespassers?
An owner or occupier of land owes no duty to an undiscovered trespasser. However, when the trespasser is known, the owner or occupier must warn of or make safe artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover.
Requirements for foreclosure by advertisement in Michigan
- Power of sale clause in mortgage
- Proper recordation of mortgage
- Publication in local newspaper of notice of sale for 4 consecutive weeks
- Within 15 days of 1st publication, posting copy of notice conspicuously on property
- Public foreclosure sale
What sanctions may a court impose on a party for failure to comply with an order to provide discovery?
- Default judgment against the party
- Strike relevant pleadings
- Enter order precluding party from offering evidence on certain claims or defenses
What is the difference between authentication of handwriting and of voice recordings?
Both may be authenticated by a person with familiarity, an expert, or the trier of fact. However, for handwriting authentication, the person with familiarity must have been familiar before trial. For voice authentication, the familiar person could become familiar for purposes of trial.
What may a party recover if he fails to fulfill an express condition or is in material breach of the K?
He may still be able to recover in quantum meruit the value of the benefits conferred, reduced by the damages suffered by the aggrieved party due to the breach. It does not matter if the breach was willful.
What are a court’s options when a poll of the jury reveals a lack of unaninimity (or lack of assent by # of jurors parties stipulated to?)
The court may 1) direct the jury to deliberate further or 2) order a new trial.
What is the reputation evidence exception for self-defense cases?
When a ∆ asserts that the victim was the first aggressor, the prosecution may show evidence of the victim’s xter for peacefulness using R/O.
What standard of review for legal rulings?
De novo
What is a novation?
A novation occurs when a new K substitutes a new party to receive benefits and assume duties that had originally belonged to one of the original parties under the terms of the old K. It discharges the old K. All parties must agree to the substitution.
Are police checkpoints to obtain info from motorists about a recent crime valid under 4A?
A police checkpoint set up to obtain info from motorists about a recent crime do not violate 4A b/c the intrusion is minimal and the intent is not to find evidence of crime committed by the occupants of the vehicle.
When is notice not required for a covenant to run with the land?
When the succeeding party is not a BFP; “notice” refers to the recording statute, and heirs/donees are not protected by the recording statute, so they are bound even without notice.
When can a prior inconsistent statement for impeachment purposes be proven by extrinsic evidence?
- Must be relevant to the case (not collateral)
- W must be given opportunity to explain or deny statement at some point during trial (unless it is a hearsay declarant)
- Adverse party must be given an opportunity to examine W about the statement
Scope of physician-patient privilege
Under the physician-patient privilege, a physician is foreclosed from divulging in judicial proceedings information that he acquired while attending a patient in a professional capacity, which information was necessary to enable the physician to act in his professional capacity. Information given by a patient that deals with a nonmedical matter is not protected by the privilege.
When is a state tax valid under the commerce clause?
(i) the tax does not discriminate against interstate commerce; (ii) there is a substantial nexus between the activity taxed and the taxing state; (iii) the tax is fairly apportioned; and (iv) the tax fairly relates to services or benefits provided by the state
How may the amount in controversy be met with an injunction?
Either by the injunction’s worth to π or the cost of the injunction to ∆. If the π is the only party suing for injunction, but the injunction affects several parties, assess the cost to ∆ as it applies to all parties.
Which preliminary facts are for the judge to decide and which are for the jury?
Jury must determine whether the offered evidence is relevant to the issues in the case. The judge determines whethe roffered evidence is competent to be admitted at all. For most factors, the judge merely has to establish that there are enough facts to support a jury finding. For hearsay exceptions, authenticity of guilty pleas, and qualifications of expert witnesses, the judge must decide on his own first to avoid prejudice.
What are a corp’s obligations when deposed?
Corp must submit to deposition by designating person to testify on its behalf. Testifying person must testidy about info known or reasonably available to the org. Corp is bound by these answers at deposition.
When does ∆ have a duty to render aid?
Where ∆ has a pre-existing legal duty or ∆’s actions have placed another person in peril or caused another’s injury, ∆ has the duty to make reasonable efforts to rescue or render aid. This duty applies even if the act that put π in peril wasn’t negligent.
What is required for a condition to excuse performance?
Nonfulfillment of a condition will normally excuse a duty to perform that was subject to the condition. Breach of a promise by one party may or may not excuse the other party’s duty to perform.
How may impeachment of a witness’s general character for truthfulness by reputation/opinion evidence or conviction of a crime be rebutted?
By redirect examination, or by other testimony of other Ws as to that W’s good repuation for truthfulness.
What remedy is available to a lost volume seller when a buyer breaches?
Profit: diff b/w K and expenses
Rule re: option Ks under the UCC
Option Ks are valid under the UCC, and will not be constrained by the 3-month limit from the MFOR when supported by consideration
When is prior testimony H admissible?
The prior testimony exception applies if the statement was taken at a deposition in this litigation. It must be under oath and parties must have had opportunity to develop or cross-examine. Declarant must be unavailable.
What is a landlord’s remedy for subtenant’s failure to pay rent?
Landlord can’t get rent from subtenant – only from original tenant
Validity of an assignment if the original obligor prohibited assignments
A clause prohibiting the assignment of “the contract” will be construed as barring only the delegation of the assignor’s duties, not hte assignment of the right to receive payment.
What is the difference between arbitration and mediation?
Arbitration is permanent, while mediation is merely an intermediate step. A court can order mediation at a pretrial conference but cannot order arbitration.
When is a K rescindable for mutual mistake?
(i) mistake concerns a basic assumption on which K is made; (ii) mistake has a material effect on the agreed-upon exchange; and (iii) party seeking avoidance did not assume risk
Who holds the spousal privilege?
Witness spouse only
What are a seller’s remedies when a buyer breaches a land sale K?
Even though a seller can be fully compensated by money damages, the courts will usually grand specific performance because land is considered unique.
What are a party’s remedies when there is anticipatory repudiation?
- Treat as total breach and sue immediately; 2. Suspend own performance and wait to sue until performance date; 3. Treat repudiation as offer to rescind and treat K as discharged; or 4. Ignore the repudiation and urge promisor to perform (but can still sue for breach if chooses to urge)
Sanctions for failure to respond to request for waiver of service
A court may impose sanctions on a party that fails to respond to a request for waiver of service of process, but will not do so when there was “good cause” for failing to respond, i.e. where the party did not receive the waiver
