Key Terms

Question 1

Novation

Answer 1

A new contract following an assignment that discharges an original party’s obligation

Question 2

De Novo

Answer 2

Questions of law: i.e. conclusions of law, jury instructions

reviewed de Novo (from beginning to see if there was an error) - no deference given, reversed if reasonable belief that judge misinterpreted law.

Question 3

Use, Derivative, Transaction Immunity

Answer 3

Use+ Derivative, or transactional alone, is enough to overcome the right against self-incrimination.

Question 4

Permissive Joinder

Answer 4

when plaintiffs join together as multiple plaintiffs or seek to join multiple defendants

Question 5

Compulsory Joinder

Answer 5

a party will be forced to join a suit if the party is necessary and indispensable to the case and can be joined

Question 6

With Prejudice and Without Prejudice

Answer 6

A case dismissed with prejudice is over and done with, once and for all, and can’t be brought back to court. A case dismissed without prejudice means the opposite. It’s not dismissed forever. The person whose case it is can try again.

Question 7

Interlocutory

Answer 7

judge made an order/decision in the middle of the case but the case is not over yet

Question 8

Alienable

Answer 8

able to be transffered to new ownership

Question 9

Taxing Clause

Question 10

Comparative Negligence

Answer 10

A plaintiff is either barred from recovery if they are more (pure comparative) than 50% responsible for their injury or (partial comparative) their recovery is limited by the amount of responsibility the have.

Question 11

Contributory Negligence

Answer 11

A plaintiff is barred from recovery if they bear any responsibility for the injury

Question 12

Interpleader

Answer 12

if a party feels it will be subject to multiple or inconsistent liability, it can file an interpleader claim and let the would-be claimants litigate amongst themselves

Question 13

Intervention Claim

Answer 13

a party who has an interest in the claim but has not been joined must be permitted to intervene upon timely application

Question 14

Impleader

Answer 14

a defendant may bring a claim against a person not already a party and must allege that the third party is responsible for some or all of the liability.

Question 15

Best Evidence Rule

Answer 15

The best evidence rule only applies when a party seeks to prove the contents of the document sought to be admitted as evidence. The best evidence rule provides that the original documents must be provided as evidence, unless the original is lost, destroyed, or otherwise unobtainable.

Question 16

Bill of Attainder

Answer 16

Bills of attainder allow the government to punish a party for a perceived crime without first going through the trial process. Unconstitutional.

Question 17

Res Ipsa Loquitor

Answer 17

Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant’s negligent conduct in
the absence of direct evidence of negligence. The plaintiff must prove that: (1) the accident is of a kind which ordinarily does not
occur in the absence of negligence; (2) the harm was caused by an agent or instrumentality within the exclusive control of the
defendant; and (3) the harm was not due to any action on the part of the plaintiff.

Question 18

Easement Appurtenant

Answer 18

An easement appurtenant benefits a parcel of land

Question 19

Easement in Gross

Answer 19

An easement in gross benefits a person or entity rather than a piece of land.

Question 20

Servient Estate

Answer 20

A servient estate is an estate that is burdened by the easement

Question 21

Daubert test

Answer 21

(1) has the theory been tested? (2) general acceptance in the relevant community; (3) peer review regarding the scientific theory; (4) degree or rate of error; and (5) standards.

Question 22

UMDA, UPAA

Answer 22

In addition to state law the UPAA governs premarital agreements where states have adopted it.

In addition to state law the UMDA governs marriages and divorces where states have apodted it.

Question 23

UPC and UTC

Answer 23

In addition to state law, the Uniform Probate Code governs probate law in states that have adopted it.

In addition to state law, the Uniform Trust Code governs trusts in states that have adopted it.

Question 24

Joint and Mutual Will

Answer 24

A joint will is one document that serves as a will and requires the same formalities as a will however, there are two testators. Disposition under a joint will occur upon the death of one testator. Revocation of one testator does not invalidate the will.

A mutual will is a will where two people will draft separate documents with identical provisions. The formalities of a standard will apply.

Question 25

Defamation, Libel, Slander

Answer 25

the elments of defamation are (1) a false statement about the P (2) communicated to someone other than P (3) that was the fault of the D and (4) that caused special pecuniary harm. Each element has to be proved by P. If however, D can show the statement was true then that is a complete defense to the action

Libel: is more permanent, widely disseminated and planned than slander

Slander: commission of a crime, bad businessman, has a disease, unchaste woman

Question 26

Evidence Deadlines 14 Days

Answer 26

1. File answer after pre-answer motion denied
2. File third-party complaint without leave after original
   answer served
3. Respond to amended pleading
4. Submit proposed discovery plan & initial disclosures
   after initial conference
5. Demand jury trial after last pleading served

Question 27

Statue of Frauds

Answer 27

SOF applies to contracts that involve (MYLEGS) marriage, performance not within a year, sale of an interest in land, the promise to pay the debt of a third party, or the sale of goods more than $500.

A contract that is governed by the SOF is unenforceable unless it meets the following requirements: (SIMPS)
Signed writing, merchants confirmation, in-court admission, part performance, or substantial reliance of specialty goods.

Question 28

Lien and Title Theory

Answer 28

Under he modern view of lien theory, the mortgagee (bank) receives a lien, and the mortgagor (homeowner) retains legal and equitable title and possession to the mortgaged property unless and until foreclosure.

Under the traditional title theory, the mortgagee (bank) receives legal title to the mortgaged property and has a right to take possession of and collect rents and profits.

Question 29

Abatement

Answer 29

An abatement occurs when the value of an estate is insufficient to cover the obligations of the estate.

Question 30

Non-Carrier and Carrier Cases

Answer 30

when the seller is not a merchant and there is no agreement to use a common carrier the risk f loss is on the buyer upon delivery.

when the seller is a merchant and there is no agreement to use a common carrier the risk of loss is on the buyer when the goods are physically in the buyers possession.

Question 31

Evidence Deadlines 21 Days

Answer 31

1. Serve pre-answer motion or answer after service of
   complaint, counterclaim, or crossclaim
2. Amend pleading as matter of course after pleading was
   served
3. Hold initial conference before scheduling order is due
4. Serve reply to answer

Question 32

Evidence Deadlines 28 Days

Answer 32

1. Renew motion for judgment as a matter of law
2. Move for new trial
3. Move to alter or amend judgment
4. Move for amended findings after final judgment
   (covers most posttrial filings)

Question 33

Evidence 30 Days

Answer 33

1. File notice of removal after receipt of initial pleading
2. Move to remand after notice of removal filed
3. Submit pretrial disclosures before trial
4. Respond to interrogatories, requests for production &
   requests for admission
5. Move for summary judgment after close of discovery
6. File notice of appeal
   (covers most discovery deadlines)

Question 34

Evidence 60 and 90

Answer 34

60
1. File answer or pre-answer motion after domestic service
waived
2. Serve answer after service of process on U.S. agency or
employee

90

1. Serve process after complaint is filed
2. File answer or pre-answer motion after foreign service
   waived
3. Disclose expert witness materials before trial