HIGHLY TESTED MEE TOPICS Flashcards
Commercial paper (tested 2021)
This is a negotiable instruments question because the instrument at issue here is capable of transfer by endorsement or delivery.
A negotiable instrument requires an unconditional promise or order to pay a fixed amount of money, payable to bearer or order, payable on demand or at a definite time, without express conditions besides payment of money.
A holder is a person entitled to enforce an instrument. A holder in due course status must take the instrument for value, in good faith, and without notice of defects. HDC status insulates HDC from personal defenses but not real defenses.
HDC status not granted if instrument is obviously forged/no ID shown
PR
Confidentiality
DUTY OF CONFIDENTIALITY extends to past, current and prospective clients
- lawyer can’t knowingly reveal a confidence or secret or use to the disadvantage of client or for the advantage of a lawyer/3rd party
confidence refers to info protected by AC privilege
Secret = info gained in professional relationship which client wants to be secret or whose disclosure would be embarrassing/detrimental to client
Can reveal if client consents, required by law, client intends to commit a crime & info is necessary to prevent crime, if lawyers services used to further illegality/fraud, defend lawyer in lawsuit, necessary to establish or collect a fee
CANDOR TOWARD TRIBUNAL
- lawyer can’t knowingly make a false statement of material fact/law to tribunal or fail to correct one previously made
- fail to disclose to a tribunal controlling legal authority
- offer evidence lawyer knows to be false
MISCONDUCT
- to violate or attempt to violate Rules
- engage in conduct (involving dishonesty, fraud, deceit, misrep) that reflects adversely on lawyer’s honesty/trustworthiness/fitness as a lawyer
REPORTING PROFESSIONAL MISCONDUCT
- a lawyer that knows another lawyer or judge has committed a violation of MPRC that raises a SUBSTANTIAL question as to lawyer’s honesty, trustworthiness, fitness as a lawyer must inform the appropriate authorities
ADVERTISING
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
RIGHTS OF 3RD PERSONS
In the course of representing a client a lawyer shall not knowingly:
- make a false statement of material fact or law to a third person or
- embarrass, delay, burden or violate the rights of a 3rd person if the lawyer has no substantial purpose for doing so.
**Who decides whether the injured person has suffered serious impairment of body function or permanent serious disfigurement? - 3RD PARTY CLAIM FOR NON-ECONOMIC DAMAGES
**The issues of whether the injured person has suffered serious impairment of body function or permanent serious disfigurement are questions of law for the COURT if the court finds either
i. There is no factual dispute concerning the nature and extent of the person’s injuries or
ii. There is a factual dispute concerning the nature and extent of the person’s injuries, but the dispute is not material to the determination whether the person has suffered a serious impairment of busy function or permanent serious disfigurement
Serious impairment of a body function [MOST HIGHLY TESTED]
A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.
TEST COURT USES for serious impairment of body function***:
- Is there an objectively manifested impairment that is observable or perceivable from actual symptoms or conditions
- of an important body function that is a body function of great value, significance or consequence to THE INJURED PERSON ( subjective) that
- affects the person’s general ability to live his normal life
“ie. woman breaks leg, needs physio & misses work for 2 months”
5 methods of creating a trust*
- Transfer of property to a trustee during the settlor’s lifetime or by disposition taking effect upon the settlor’s death*
- When there is a declaration by the owner of the property that the owner holds identifiable property as a trustee*
- When there is an exercise of a power of appointment in favor of a trustee.
- By declaring an irrevocable trust.
- a promise from one person to another to hold property for the benefit of a 3rd person.
Validity of a Trust - 5 Statutory requirements to create a valid trust** [MOST HIGHLY TESTED]
& oral trusts
The settlor 1) has capacity to create a trust
2) has intention
3) Trustee has duties to perform
4) same person is not the sole trustee
&sole beneficiary
5. Trust has a definite beneficiary, is a
pet care trust, is a charitable trust or is a
trust for a non-charitable purpose.
**Oral trust: A trust does not need to be in writing. However, the terms of an oral trust need to be established by CLEAR AND CONVINCING EVIDENCE
Duty of Directors - Business judgment rule (IMP)
Directors must act in good faith, in a manner they reasonably believe to be in the best interests of the corporation, and with the care that an ordinarily prudent person in a similar position would exercise under similar circumstances. This is presumed under the business judgment rule, absent evidence of fraud, bad faith, self-dealing. It is then up to the plaintiff to overcome this presumption.
Directors can rely on information, opinions, reports etc. from legal counsel, public accountants, engineers, or other persons , as to matters director reasonably believes are within a person’s professional or expert competence.
Shareholder Derivative Lawsuits against director [IMPORTANT TO KNOW]
Shareholder direct suits - when wrong done amounts to a breach of duty owed to the individual personally
Shareholders may file lawsuits against a director to establish that the director acted illegally, fraudulently, breached their fiduciary duties, or their actions were unfair and oppressive to the individual or the corporation.
A derivative lawsuit may be filed on behalf of the corporation if there is injury to the corporation. In order to establish a derivative suit, the shareholder must 1) be a shareholder at the time of the breach of the fiduciary duty until the time of judgment 2) the shareholder must fairly and adequately represent the interests of the corporation, and 3) must file written demand to the corporation to take action, and wait 90 days before filing the lawsuit unless the corporation has rejected the demand or waiting 90 days would cause irreparable injury to the corporation
Shareholder right to inspect & burden of proof (IMP**)
Any shareholder, in person or by attorney or agent has a right to inspect a corporation’s stock ledger, shareholder list and other books and records if they write a written demand to corp. which states with reasonable particularity their purpose for inspecting, the records sought, and this purpose is directly related to records sought.
A proper purpose is one that is reasonably related to person’s interest as a shareholder. The demand can be made through an attorney or other agent as long as the demand is accompanied by writing which authorizes attorney or other agent to act on behalf of the shareholder.
Shareholder can compel inspection if corp. doesn’t permit it within 5 days/imposes unreasonable condidtion.
When shareholders file suit to compel inspection of stock ledgers or shareholder lists, the burden of proof is on the corporation to show an improper purpose or the records are not directly connected with shareholder’s purpose.
For all other documents, the burden of proof is on the shareholder to establish proper purpose & documents are directly connected with the purpose.
Piercing corporate veil and holding shareholders liable ***
Generally, corporations are treated as entities separate from its shareholders, so shareholders are not personally liable for the debts of the corporation. A shareholder can be personally liable ( knowing as piercing the corporate veil) if plaintiff can show
1) corporate entity is found to be a merely an instrumentality
2) the corporate entity was used to commit an injustice, wrong or fraud AND
3) there was unjust injury or loss to P
MIMIC
- A Defendant’s PRIOR BAD ACTS can be admissible to prove motive, intent, identity, mistake, common scheme. The prosecutor only has to produce enough evidence so a reasonable juror could conclude that D committed the prior bad act ( D does not need to be convicted).
- Then go on to discuss whether it is relevant
- Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. - Then use 403 test
- Irrelevant evidence is not admissible. Relevant evidence is admissible unless there is a statute that says otherwise or the probative value is substantially outweighed by the prejudicial effect such as unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time
Lay witness testimony
A lay witness’s opinion is admissible if it is rationally based on the witness’s perception and helpful to a clear understanding of the witness’ testimony or determining a fact in issue. It must not be based on scientific, technical or otherwise specialised knowledge
Expert Witnesses** [NEED TO KNOW, LIKELY TESTED]
A witness who is qualified as an expert by knowledge, skill, trailing, experience or education may testify in the form of an opinion or otherwise if it is
1) helpful to the trier of fact and
2) it is based on sufficient facts or data which means expert’s opinion is based on personal knowledge of the facts or data or based on facts that are IN THE RECORD and made known to the expert by a hypothetical question or testimony at trial
The testimony must be the product of reliable principles and methods which the expert has reliably applied to the facts of the case.
Using Conviction of a crime for Impeachment ***[ LIKELY TO BE TESTED]
Crimes that require proof of dishonesty or false statement ( ie. tax fraud, perjury, embezzlement)
OR
Felony conviction fo a theft crime ( ie. robbery, larceny)
- must have sign. probative value on issue of credibility based on age ( more recent = better) and extent to which crime is indicative of truth-telling
- if witness is D, court will only admit conviction IF prob. outweighs prej. based on similarity o conviction & possibility D wouldn’t testify if admitted
10 year rule: if more than 10 years past conviction or release from confinement ( whichever is later), not admissible unless proponent can show probative value substantially outweighs prej. effect and adverse party given reasonable written notice of intent to use it.
Dormant Commerce Clause *
Article I of the Constitution provides Congress with the power to regulate interstate commerce. Where congress is silent, a state under its police powers may regulate local aspects of interstate commerce, however per the Dormant Commerce Clause, state laws cannot place an undue burden on interstate commerce.
When a state statute expressly discriminates against interstate commerce, the statute is generally struck down.
When the law discriminates against IC but is passed to promote the health, safety, welfare, of state citizens, the state must satisfy strict scrutiny (necessary to serve a compelling state interest & no reasonable non-discriminatory alternative).
If a law is non-discriminatory but still has an indirect effect on interstate commerce, the statute will be upheld if it serves an important state interest, and does not impose an unreasonable burden on interstate commerce.
Procedural DP
due process guaranteed by 5A, and applies to states through 14A. Refers to the constitutional requirement that when the government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must be given notice, the opportunity to be heard.
Employment is a property interest, with the exception of at will employment, so person must be given pre-termination hearing.
Equal Protection
Under the 14th Amendment, no state shall deny to any person…the equal protection of the law.
race/ethnicity/alienage (ONLY IF STATE GOV). & fundamental rights ( right to vote, interstate travel, 1A rights, right to refuse medical treatment, marriage/divorce, contraception, sexual conduct, obscenity in home, family relations, abortion) subject to strict scrutiny. Gov. must show that the classification was narrowly tailored to achieve a compelling government interest
gender/ illegitimacy/mental capacity: intermediate scrutiny test. Gov. must show that the classification is substantially related to an important gove. interest
everything else INCLUDING DISCRIMINATION BY FEDS ON BASIS OF ALIENAGE: rational basis test. The plaintiff must show that the government provision is not rationally related to a legitimate government interest, in order for the provision to be struck down.