July ’18 Flashcards
Felony murder is…
…any murder committed, whether intentional or accidental, during the commission of or during an attempt to commit:
• Arson
• Rape
• Robbery
• Burglary
• Abduction
Felony murder is treated as first degree murder.
Death must result from actions of the felon or from acts directly calculated to further the felony or necessitated by the felony, not from circumstances coincident to the felony.
Felony homicide is the accidental killing, contrary to the intention of the parties, while committing some felonious act not specified in the first degree murder and aggravated murder statutes.
Can D be convicted of a crime and also the conspiracy to commit that crime?
Yes. However, merger prevents the crimes from being charged successively.
There is no double jeopardy problem where…
…each crime contains an element the other does not.
Statutory requirements for a transfer on death deed:
the deed stated that transfer to the designated beneficiary was to occur at the transferor’s death;
the deed was recorded before the transferor’s death in the circuit court where the property was located; and
the deed was never revoked.
Will supersede a will with respect to the specific property.
Must a written statement/list to dispose of tangible personal property satisfy testamentary formalities?
No but it must describe items of tangible personal property and their intended recipients with reasonable certainty and be signed by the testator.
Adoption before the age of majority…
…terminates the adopted party’s status as descendent of their biological parents.
In federal court, a highly waivable Rule 12 defense is preserved as long as…
…by raising any such defenses in the first defensive filing within 21 days of service on the defendant.
Highly waivable Rule 12 defenses include: PJ, venue, insufficient process, or insufficient service of process.
In Virginia state court, objection to PJ is waived if…
…the defendant makes a general appearance, i.e., any conduct that engages the merits of the case.
Must make special appearance instead (can be motion to dismiss for PJ).
The long arm statute provides pj for 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…
…the seller could reasonably foresee effect in Virginia and the seller regularly does or solicits business in Virginia or derives substantial revenue from goods consumed in Virginia.
A buyer of non-conforming goods ___ seek revocation and damages at the same time.
Can.
___ after notice of revocation is an ___, which deprives the buyer of the power to revoke.
Significant and avoidable use; exercise of ownership.
Such a revoker may argue that the use was commercially reasonable and could pay a reasonable rental fee to offset her exceeding her authority as bailee.
The correct caption for a suit on behalf of a minor is…
Patty Lane, a minor, who sues by her next friend, Lucy Lane, Plaintiff v. Debbie Jones, Defendant.
Misnomer v. Misjoinder.
Misnomer is wrong name, misjoinder is wrong party.
Fraudulent transfer
Any gift, conveyance, assignment, or transfer made with the actual intent to hinder, delay, or defraud creditors is considered fraudulent and is void. Does not affect title of purchaser for valuable consideration with no notice of fraudulent intent.
Clear and convincing evidence standard.
Gift by debtor
Every gift, conveyance, assignment, or transfer not for valuable consideration by an insolvent transferor shall be void as to existing creditors.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless…
…there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct…
…knowingly assist or induce another to do so, or do so through the acts of another.
Sanctions for motions
The signature of an attorney or party constitutes a certificate that
(i) he has read the pleading, motion, or other paper,
(ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and
(iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.
If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney’s fee.
Punishments for disrespect and PR violations can include…
…contempt, prohibition from practice before a court, reporting of violation to state bar.
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).
The UCCJEA vests exclusive jurisdiction for child custody litigation in the courts of a child’s home state (the state where the child has lived with a parent or person filling the role of a parent for 6 consecutive months prior to the commencement of the first custody proceeding).
Another state may be more appropriate due to termination of connections with the former home state, or no home state.
Third party custody.
Presumption in favor of parents, but third persons with a legitimate interest may be awarded custody.
Five factors which rebut that presumption:
[1] parental unfitness;
[2] a previous order of divestiture (granting the third party custody);
[3] voluntary relinquishment;
[4] abandonment;
[5] and a finding of special facts and circumstances constituting an extraordinary reason for taking a child from its parent.
Once the presumption is rebutted, best interests test by preponderance of the evidence.
