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Incorrect MBE Questions Flashcards

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1
Q

Statement against interest

A
  1. Declarant is unavailable
  2. Statement is against decl. pecuniary, proprietary or penal interest
  3. It was against the declarant’s interest when it was made, and declarant knew it was against his interest

Declarant may be a non-party***

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2
Q

Implied in law / Quasi K

A

P conferred benefit to D
D reasonably expected to be paid
D would be unjustly enriched if it didn’t pay

if there is a K, them supervening event occurs, and both parties’ duties are discharged, benefit conferred prior to supervening event may be recovered in restitution

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3
Q

When does a notice of removal need to be filed?

A

within 30 days of service of the complaint on D. Earlier served D can consent to removal past this time if later served D initiates. Letter of consent is sufficient

only D can remove*****

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4
Q

Ex post facto law

A

Legislation that retroactively alters CRIMINAL LAW to punish people for some past crime

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5
Q

Who appoints principal officers?

A

President appoints principal officers with advice and consent of senate

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6
Q

When is a principal liable for an independant contractor?

A

when they’re carrying out an inherently dangerous activity or the duty is nondelegable

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7
Q

Elements of IIED

A

D intentionally or recklessly engages in extreme or outrageous conduct that causes P severe emotional distress

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8
Q

Handwriting - Evidence

A

Witness’s familiarity with handwriting cannot be acquired for purposes of the litigation

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9
Q

Can express conditions be oral?

A

Yes

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10
Q

Federal Question

A

federal jurisdiction over cases arising under federal law, including a TREATY

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11
Q

Intervention by right

A

where court cant grant complete relief if 3rd party is absent or they have a sig. interest in the case and if not joined it will impair their ability to protect their interest

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12
Q

Permissive intervention

A

3rd party’s claim has common question of law or fact AND claim does not destroy COMPLETE DIVERSITY

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13
Q

JMOL standard

A

must be brought before case submitted to jury

- granted if there is no substantial evidence to support a verdict for a non-moving party

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14
Q

Renewed JMOL

A

Court will examine whether the evidence is insufficent as a matter of law to support the verdict

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15
Q

Standard for a Motion for a new trial

A

If judge thinks juries’ decision was wrong and against “ great weight of evidence”

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16
Q

Motion for relief from judgment

A

Within 1 year ( unless inequitable) , if there’s fraud, mistake, etc. or new evidence (ie. from juror/adverse party) that could not have been discovered by due diligence until after the judgment

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17
Q

Defeasible Fee Simple?

A

Fee simple determinable, fee simple subject to EI, fee simple subject to CS

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18
Q

Does a deed from owner to purchaser have to mention an easement?

A

No, even if it doesn’t, if the easement was recorded, the purchaser has notice

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19
Q

Nonhearsay

A
  1. legally operative words - used to show words were said
  2. Effect on person who read or heard the statement ( used to show person had notice or to dispute motive/intent)
  3. Circumstantial evidence - to prove person’s state of mind ( insane)
  4. Prior statement of a trial witness ( of id, inconsistent or consistent to rebut charge of recent fabrication/improper motive)
  5. Opposing party’s statement ( adoptive admission, agency relationship, statement by coconspirator if made during course of and in furtherance of conspiracy)
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20
Q

Adoptive Admission

A

Form of nonhearsay where person 1) heard and understood statement, 2) reasonable person would have denied statement, 3) person was physically and mentally capable of responding

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21
Q

Hearsay Exception where Declarant is Unavailable

A 
Forfeiture by wrongdoing
Former testimony 
Statement against interest
Dying declaration
Statement of personal or family history
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22
Q

8 ways to impeach - evidence of truthful character only admissible after witness’s truthfulness is attacked

A
  1. Prior inconsistent statement
  2. Bias
  3. Conviction of Crime of Dishonesty
  4. conviction of felony ( balancing test)
  5. bad acts probative of truthfulness ( ON CROSS - EXAMINATION can inquire if 403 satisfied. extrinsic evidence not admissible to prove specific acts of misconduct)
  6. R/O evidence for witness’s untruthfulness
    - party calls its own witness
  7. Sensory deficiencies
  8. Contradiction - during cross if witness lied during direct ( can use extrinsive evidence only if fact at issue isnt collateral)
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23
Q

prior bad acts - probative of truthfulness

A

Method of impeachment used during cross examination if probative of truthfulness.
- extrinsic evidence NOT ADMISSIBLE to prove specific acts of misconduct

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24
Q

When can an offer to settle come in?

A

Impeachment, if negotiations evidence criminal intent

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25
Q

Character Evidence

A

D opens door w/ pertinent evidence (R/O)

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26
Q

Tolling the clock for adverse possession

A

disability ( ie. jail, insane, or a minor) must exist AT THE TIME the adverse possessor enters onto the land. If minor, tolled by the # of years until they are 18

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27
Q

When can an individual file an MSJ?

A

Anytime until 30 days after the close of discovery

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28
Q

What kind of documents must support an MSJ?

A

signed affidavits, admissions, depositions, sworn statements, etc. Cannot just reassert allegations from complaint/answer

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29
Q

Is burden of proof state substantive law or federal procedural law?

A

State substantive law

30
Q

Is caps on damages state substantive law or federal procedural law?

A

State substantive law

31
Q

What must a motion for a new trial be filed?

A

No later than 28 days after the entry of the judgment

32
Q

When must an appeal be filed?

A

within 30 days of entry of the judgment

33
Q

Profit

A

gives holder a right to enter onto another’s land for the purpose of removing natural resources. Profits are property rights protected by the due process clause

34
Q

What is a complete defense to strict liability?

A

Assumption of risk

35
Q

assumption of mortgage

A

assumption of mortgage makes buyer primarily liable, and original mortgagor secondarily liable

36
Q

11A

A

private citizen can’t sue state in other state court or federal court

37
Q

A/C privilege and furtherance of a crime

A

AC privilege extends not only to attorney but also to confidential info garnered at attorney’s request.

It does not apply if services were sought to enable or aid in commission of crime/fraud.

38
Q

modification of UCC K

A
  • only requires good faith

- remember a waiver is not the same as a modification

39
Q

Defenses for libel & slander

A

Consent, truth, privileges

absolute privilege = statements made during judicial, legislative and executive proceedings
- statements btwn spouses
Qualified privilege = ie. statement made by investigating police officer/prospective employer asking about info re applicant from former employer
- SPEAKERS MUST HAVE REASONABLE BELIEF that statement is accurate & only discuss matters relevant to situation

40
Q

last clear chance

A

Contributory negligence - old common law doctrine (not applicable) where P is completely barred from right to recover if she was negligent, unless D had the last clear chance to avoid the injury

41
Q

relation back of claims

A

only applies if new claim stems from same transaction/occurrence/conduct as the old claim

42
Q

statement made for purposes of medical diagnosis or treatment

A

statement made to anyone, which concerns past or present symptoms or the cause of condition, and is made for the purpose of diagnosis or treatment

43
Q

must answer a complain within?

A

21 days or 60 days if waiver of service

44
Q

enforcement clause of 14A

A

equal protection, due process & privileges or immunities clause

45
Q

Privileges or Immunities Clause

A

prohibits states from enforcing laws that deprive citizens rights such as right to vote for federal officers, right to interstate travel, right to interstate travel, etc.

46
Q

15A

A

Provides that the right to vote shall not be abridged on the basis of race/colour

47
Q

Present Sense Impression

A

Statement that describes an event or condition, and is made while or immediately after the declarant perceives the event or condition.

10 MINUTES IS WAY TOO LONG.

48
Q

Promissory estoppel

A

only applies if there is no K*

  1. A promise
  2. reliance that is foreseeable and justifiable
  3. enforcement is necessary to avoid injustice
49
Q

General Venue rule

A

venue proper in a district where any D resides, if all D reside in same state or in a district where a substantial part of the events or omissions giving rise to the claim occurred or fallback any court where D is subject to PJ.

Waived if D does not object to complain in first response

50
Q

Commercial speech

A

False or misleading speech is not protected.

  1. The speech must be lawful and not misleading
  2. The statute must serve a substantial government interest
  3. The statute must directly advance that interest AND
  4. the statute must be narrowly tailored
51
Q

When does an equitable servitude bind an entire subdivision?

A

when it is found in the common building plan for that subdivision

52
Q

Erie & Federal Common law

A

federal courts can still apply federal common law in some situations, even when case is in federal court for diversity. when subject matter has a relation to a federal statute, courts will weigh federal interests against forum state’s interests to decide which law to apply

53
Q

Pure Comparative Negligence

A

P can recover no matter how negligent.

54
Q

Legal Malpractice Claim

A

P must prove 1) lawyer’s misconduct caused her loss & 2) had lawyer met standard of care, she would have won

55
Q

Habit Evidence

A

use of X’s routine practise to show X acted in accordance with that habit on that particular occasion. Does not need to be proven by corroborative evidence. Opinion evidence/ specific instances of conduct sufficient to prove habit

56
Q

Highly toxic chemical use - company can be subject to strict liability

A

-

57
Q

Can a final pretrial order be modified?

A

yes, but court will only modify a pretrial order if it is necessary to prevent manifest injustice

58
Q

Equitable estoppel

A

fraudulent misrepresentation & reliance on that false information.

*UNFAIR DEALING ISN’T THE SAME

59
Q

Time, place, manner restriction standard

A

In a public forum, a content neutral regulation will be upheld if it is narrowly tailored to acheive an important government interest

60
Q

Unconscionability

A

Procedural: unfair bargaining process
Substantive: grossly unfair terms

61
Q

Motion for sanctions if pleading if frivolous (11)

A

party seeking sanctions serves motion on the other party. other party has 21 days to withdraw/correct pleading, and if not, then party can file motion w/ court

62
Q

SIA

A

person: search wingspan

vehicle:

unsecured: search interior cabin + closed containers but not trunk
secured: areas where there may be evidence of crime arrested

63
Q

Double jeopardy

A

attaches in jury trial when jury sworn & impaneled. Attaches in bench trial when first witness sworn in. does not attach at civil trials, prelim hearings

64
Q

Conveying a life estate

A

When A conveys a life estate to B, B has a life estate for the length of A’s life.

65
Q

Life estate tenant duties

A

keep property in repair, pay interest on mortgage, and pay real estate taxes

66
Q

Forum non conveniens

A

another forum is more appropriate

67
Q

license

A

ie. ticket that gives holder a contractual right to use a portion of the property, for a fixed period of time but doesnt afford holder an interest in the property. License can be revoked

68
Q

condition subsequent

A

condition which cuts off an already existing duty of performance

69
Q

Implied in fact contract

A

Can be inferred from parties’ conduct, such as where services are rendered by one person to another under circumstances where it would be fairly presumed that parties’ understood that compensation would be paid

70
Q

Removal

A
  • only D can remove

- must remove within 30 days of receiving a paper from which D should realise case is removable

Law (24 decks)

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