MBE Flashcards
Hearsay
Compelled Testimonial Communications
The privilege against self-incrimination extends only to compelled “testimonial” communications.
Courts have typically held that the Fifth Amendment offers no protection against compulsion to submit to “fingerprinting, photographing, or measurements, to write or speak for identification(lineups), to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.
Testimonial Statements
Testimonial = Statements made to:
a) Grand juries;
b) Affidavit or Certified Report with forensic lab
results; OR
c) The police whose primary purpose (when
viewed objectively) was to collect testimony to
be used at a later trial.
Landowner Property Protection
Landowner is privileged to protect her property from intrusion by a means not intended or likely to cause death or serious bodily harm.
Contract Modification
If any additional conditions are made after the contract is formed then it is a request to modify the contract, which would only become a valid term in the contract if both parties assent to it.
Fee Simple Defeasible
Fee Simple Determinable (possibility if reverter) - So long as, as long as
Fee Simple Subject to Condition Subsequent (right of re-entry) - but if
Fee Simple Subject to Executory Interest (future interest in third party not the grantor and his heirs) - to A, so long as (but if), … to B
Supplemental Jurisdiction
The dismissal of a federal claim does not divest the court of supplemental jurisdiction over a state-law claim. The court may, in its discretion, rely on the dismissal as a reason to discontinue hearing the state-law claim but it is not required to do so.
Formation of Contract Through Online Prices
When P goes onto plumbers’ websites and checks prices and then calls to ask for them to render services and they agree, then the P has agreed to the prices described online. Becomes a bargained-for contract that includes the prices set forth by plumber.
Freedom of Press vs Laws of General Application
The Supreme Court has consistently rejected claims that the freedom of the press protected by the First Amendment exempts press activities from laws of general application such as contract law.
Freedom of Press vs Laws of General Application #2349
The Supreme Court has consistently rejected claims that the freedom of the press protected by the First Amendment exempts press activities from laws of general application such as contract law.
Attorney-Client Privilege vs Inadvertent Disclosures #2352
An inadvertent (mistaken) disclosure will not operate as a waiver of the attorney-client privilege if the holder of the privilege promptly takes reasonable steps to rectify the error. If reasonable steps were not prompt (late) then disclosure operates as a waiver of privilege.
Forum-Defendant Rule
A suit that is removable solely on the basis of diversity may not be removed if any of the parties in interest, properly joined and served, is a citizen of the state in which such action is brought. This rule bars removal only when diversity is the sole basis for federal jurisdiction.
Period of Removal (Multiple Ds)
When defendants are served at different times, each defendant gets 30 days to remove from the time of service. The removal statutes permit an earlier-served defendant to consent to removal by a later-served defendant even when the earlier-served defendant had failed to timely remove.
Criminal Attempt
An attempt consists of two elements: (1) a specific intent to commit the crime, and (2) an overt act in furtherance of that intent.
Entrapment (Affirmative Defense) - Criminal Law #2355
When police induce a D to commit an offense that she otherwise would have been unlikely or unwilling to commit.
Undue Influence (defense to k) #2356
D is correct. Undue influence, or “over-persuasion,” often includes factors such as the existence of a confidential relationship, unusual time and place for the persuasion, multiple persuaders, and time pressure. Duress requires force or an improper threat.
Expert Opinion Standards #2358
An expert’s opinion must be based on sufficient facts and data, and the expert must employ a reliable methodology. The party that offers expert testimony has the burden to prove the reliability of that testimony by a preponderance of the evidence. The sufficiency of the expert’s basis for her opinion and the reliability of the expert’s methodology are for the court to determine by a preponderance of the evidence.
Independent Contractor Liability #2359
A person who hires an independent contractor ordinarily is not liable for injury to a third party caused by the contractor’s negligence. However, there is an exception to this rule when the person directly influences the manner in which the contractor performs the work so as to contribute to the creation of the danger that causes the third party’s injury.
Plain Error Rule #2536
Under the “plain error” rule, an appellate court may remedy an error that was plain or obvious if that error affected substantial rights, even if there was no objection raised.
Plain Error Rule #2536
Under the “plain error” rule, an appellate court may remedy an error that was plain or obvious if that error affected substantial rights, even if there was no objection raised. Although a defendant’s failure to object can change the standard of appellate review, it does not foreclose review when the error constitutes a plain error. Plain error is an exception to the rule that, in order to preserve an error for review on appeal a party must make a specific and contemporaneous objection to the perceived error.
Employment Contract Enforceability #2362
Salary is a material term and without it a contract is too indefinite to be enforceable. A “lifetime” employment agreement is not subject to the statute of frauds, the employee could die within a year which makes the k fully performable within a year.
Political Question vs Judicial Review #2365
Interbranch disputes involving foreign affiars are not subject to the political question doctrine when they concern the validity of a federal statute. The political question doctrine insulates from judicial review certain constitutional questions the Constitution has committed either to the legislative or executive branch. The identities of the parties are irrelevant in determining if an action involves a nonjusticiable political question.
Restitution Damages
A party that materially breaches a contract is nevertheless entitled to recover, under a theory of restitution, the value of the benefit that the breaching party’s part performance conferred on the victim of the breach.
Request of Waiver of Service vs Default Judgement
FRCP 4(d) encourages but does not require defendants to waive formal service by returning a signed waiver request. Thus, a failure to return the waiver obliges the plaintiff to proceed with formal service. Not returning the waiver does not subject the defendant to the possibility of default.
Title Insurance #2521
A title insurance policy is a contract of indemnity. It insures the individual named in the policy and his heirs and devisees so long as the named insured or his heirs or devisees own the insured property.
Forfeiture of a Hearsay or Confrontation Objection #2374
In order to forfeit a hearsay or confrontation objection, a defendant must have engaged in wrongful conduct for the purpose of preventing the declarant from testifying.
Jury Instruction on Lesser Included Offense #2376
Upon request, a court should instruct the jury on a lesser included offense if, on the evidence presented, the jury may rationally acquit the defendant of the charged offense but convict of the lesser offense.
Removal of Executive Officers #2377
C is correct. The Supreme Court has repeatedly held that Congress shall not play any role in the removal of executive officers. Under Myers and subsequent cases, the Senate has no role in the removal of federal officers other than via impeachment.
Removal of Executive Officers #2377
C is correct. The Supreme Court has repeatedly held that Congress shall not play any role in the removal of executive officers. Under Myers and subsequent cases, the Senate has no role in the removal of federal officers other than via impeachment.
Contract Reformation #2378
When a written contract fails to express the actual agreement of the parties, the remedy is reformation of the contract, not avoidance.
Timely Objection to Preserve for Appeal #2380
An objection raised only after a witness has left the stand is not timely. An objection accompanied by a motion to strike at the first opportunity—even after the inadmissible information has been presented to the jury—may be timely. To preserve an issue for appeal, the critical question is not whether the evidence was presented to the jury, but instead whether the objection is timely and includes the specific grounds for the objection. An objection must be made at the earliest opportunity, and an objection that is made “during trial,” but only after the witness leaves the stand, is not considered timely for purposes of preserving the issue for appeal.
Partial Comparative Negligence #2381
The rule states that the man cannot recover against a defendant whose fault is less than or equal to his own. Each defendant’s percentage of fault is considered individually and not aggregated among all defendants. If the jury finds the man was 25% responsible and that each defendant(3 Ds) was also 25% responsible, the man cannot recover from any defendant. Also a D that has a higher percentage than a co-D cannot recover from that D.
TRO #2382
Every order that grants a TRO must state the reasons why it was issued and must detail the acts restrained. A TRO may be issued without notifying the party to be enjoined if the moving party submits an affidavit certifying that reasonable efforts were made to give notice.
TRO #2382
Every order that grants a TRO must state the reasons why it was issued and must detail the acts restrained. A TRO may be issued without notifying the party to be enjoined if the moving party submits an affidavit certifying that reasonable efforts were made to give notice.
Take Care Clause
The Take Care Clause requires the President to take care that the laws be faithfully executed. The President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent. They must be spent the way Congress has designated.
Dangerous Proximity Test #2385
Defendant must commit an act beyond mere preparation for the offense. Traditionally, most courts followed the “proximity” test, which requires that the act be “dangerously close” to successful completion of the crime (e.g., pointing a loaded gun at an intended victim and pulling the trigger, only to have the gun not fire or the bullet miss its mark is sufficient). Though today, many states and the MPC only require a “substantial step”. Over act for Attempt much more substantial than Overt act for Conspiracy.
Solicitation vs Crime of Possessing Drugs #2385
Solicitation consists of counseling, advising, or commanding another to commit a crime with the specific intent that the person commit the crime. A man committed criminal solicitation when he attempted to cause the undercover officer to commit the crime of possessing a controlled substance. (Drug dealer offered to sell to undercover officer but he had no actual drugs)
Conviction of Lesser Charge vs Acquittal of Greater Charge #2516
A jury’s conviction on a lesser charge constitutes an implied acquittal of a greater charge, thus barring retrial on that greater charge.
Punitive Damages #2387
Punitive damages may be awarded where there is proof of the defendant’s willful or wanton misconduct.
Short Sale #2388
A short sale occurs when a lender agrees to release its lien in exchange for the sale proceeds.
Redemption in Equity vs Statutory Redemption
Redemption in Equity
At any time prior to the foreclosure sale, the mortgagor may redeem the property by paying the amount due.
Statutory Redemption
About half the states allow the mortgagor to redeem the property for some fixed period (e.g., six months) after the foreclosure sale has occurred.
Relation Back vs Amendments Adding a Party #2389
Relation back of amendments that add a party will be permitted if the failure to name the party is the result of a mistake in identity. The closing of discovery does not automatically foreclose the ability to amend a complaint to add a new party.
Mutual Mistake #2391
A person cannot avoid a contract for mutual mistake where that person bears the risk of mistake. Here, the heir bore the risk. A contract is voidable by mutual mistake only if the adversely affected party did not bear the risk of a mistake.
Public Forum
A public beach is not a traditional public forum. The Supreme Court has limited such forums to streets, sidewalks, and parks.
Nontestimonial Statements #2500
A statement is considered nontestimonial if it was not made for the primary purpose of assisting with a criminal investigation. Does not have to be said to an officer, can be said to fiance.
JMOL #2473
When a court must decide whether to grant judgment as a matter of law, the court must determine, after it considers all the evidence introduced by both parties, whether there is legally sufficient evidence to support a judgment for the nonmoving party.
Emergency Aid Exception to Warrant Requirement #2404
The emergency aid exception to the warrant requirement allows officers to enter in order to render emergency assistance to an occupant or to protect an occupant from imminent injury. The emergency aid exception can justify a warrantless entry regardless of whether the homeowner requests a warrant or otherwise refuses consent. The question is whether a reasonable officer would believe there is an exigency to search the home in order to preserve life or avoid serious injury.
Burden on Interstate Commerce #2405
A nondiscriminatory state law may be unconstitutional if the burden on interstate commerce clearly outweighs the state’s interest in regulation. If the burden is a nominal fee and the registration is non discretionary then it most liekly does not burden interstate commerce.
Burden on Interstate Commerce #2405
A nondiscriminatory state law may be unconstitutional if the burden on interstate commerce clearly outweighs the state’s interest in regulation. If the burden is a nominal fee and the registration is non discretionary then it most liekly does not burden interstate commerce.
Reliance on Bid vs Option Contract #2406
Reasonable reliance on a bid creates an option contract under which the offeror cannot revoke its bid for a reasonable time. When the offeree accepts it creates a contract and braech of this contract entitles offeree to expectation damages.
Mortgage vs Surety #2407
As a person may mortgage their land to secure the debt of another person, the mortgagor need not necessarily be the debtor. A third-party can mortgage their own property for another person’s debt even though they don’t sign a promissory note or agree to assume the mortgage. The third-party will not b personally held liable for the debt but their porperty can be foreclosed.
Voluntary Dismissal Without Prejudice #2410
Dismissal without leave of court - before D serves an answer or motion for summary judgement.
Dismissal with leave of court - after there has been an answer, motion, or prior dismissal by P
State Action #2411
For the action of a private entity to satisfy the “state action” requirement, the state must be “significantly involved” in the private entity. The fact that the company supplies a very important good to the public and received a non-exclusive franchise from the city is insufficient to make it a state actor. Private entities performing a public function are state actors only if the function is traditionally an exclusive governmental service or one that involves inherently governmental powers such as incarceration. Supplying water does not satisfy either of these requirements.
Misrepresentation #2412
Nondisclosure of a fact is the equivalent of a misrepresentation when a person knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation. Concealment requires an affirmative act. Failure to disclose changed condition is the equivalent of an assertion.
FRE vs Grand Jury #2413
Rules on privilege apply to all stages of a case, including grand jury proceedings. Generally, the identity of a lawyer’s client is not protected by the attorney-client privilege because such a disclosure would not reveal any confidential attorney-client communications.
Privilege Against Imminent Harm #2416
A person is privileged to use reasonable force to protect another against imminent harm. The privilege includes preventing self-inflicted harm (e.g. jumping off building).
Non-unanimous Verdict #2417
Federal Rule of Civil Procedure (FRCP) 48 permits a non-unanimous jury verdict if stipulated to by the parties.
Failure to Include Term #2428
If a written agreement fails to include a term of the agreement due to a mistake by both parties, the writing may be reformed to express the actual agreement.
Seller of Nondefective Component Liability #2462
A commercial seller of a nondefective component part that is incorporated into a finished product by the product’s manufacturer is not strictly liable for injuries caused by the product unless the seller substantially participated in the integration of the part into the design of the finished product, and the integration of the component is what rendered the finished product defective.
Ineffective Assistance of Counsel #2432
To establish a claim of ineffective assistance of counsel, a defendant must show two things: (1) that defense counsel’s performance was deficient and (2) that the deficiency was prejudicial. Defense counsel has a duty to conduct a reasonable investigation to determine whether there are mitigating facts for the penalty phase of a capital case.
Motion for Relief from Judgement #2305
When the reason for seeking relief from a judgement is mistake, inadvertance, surprise, or excusable neglect, a motion must be made no more than one year after the entry of the judgement.
Motion for Relief from Judgement #2305
When the reason for seeking relief from a judgement is mistake, inadvertance, surprise, or excusable neglect, a motion must be made no more than one year after the entry of the judgement.
Estoppel by Deed #1533
Estoppel by deed (sometimes referred to as after-acquired title) ensures that if a grantor purports to convey title that he does not actually hold, and he subsequently acquires title to the property, it will automatically effectuate the prior benefit conveyed to the grantee.
Estoppel by Deed #1533
Estoppel by deed (sometimes referred to as after-acquired title) ensures that if a grantor purports to convey title that he does not actually hold, and he subsequently acquires title to the property, it will automatically effectuate the prior benefit conveyed to the grantee.
Landowners’ Duty to Others #1109
Land possessors owe multiple duties. They owe a duty to individuals who enter the land (the invitee/licensee/trespasser hierarchy). They also owe a duty to individuals on nearby land (e.g. neighbors) and individuals passing by the possessor’s land (e.g. pedestrians, dogwalkers, etc., though this duty exists mainly for artificial conditions). When selling property, they owe a duty to disclose known, nonobvious, dangerous conditions to the buyer (note that this is the same type of duty owed to licensees). These duties continue even after a sale - the seller still owes a duty to third parties until the buyer has a reasonable opportunity to discover the nonobvious dangers on the property.
RIght to Associate #1574
The U.S. Supreme Court has held that the government may not fire an employee because of the employee’s political views or affiliations unless certain political views or affiliations are required for the effective performance of the employee’s job.
Revocation of Offer Made to Public #100
Revocation of offers made to the general public must be given publicity equal to that given to the offer and no better means of notification should be reasonably available.
Death Escrow #1442
Through a death escrow, the grantor may give a deed to an escrow agent to deliver to the grantee on the condition that the grantor dies. A death escrow is effective as long as two things are true: (i) the only condition is the grantor’s death; and (ii) the grantor doesn’t retain the legal right to take the deed back out of escrow. Death escrows typically aren’t purchases, but gifts that take the place of wills. Does not need to be in writing.
Exception to Pre-Existing Duty Rule #967
An exception to the pre-existing duty rule arises when a pre-existing legal duty was owed to a third party. Traditionally, when a pre-existing duty was owed to a third party, a new promise to perform the same duty would not constitute consideration. However, under the prevailing modern rule, the new promise WILL constitute consideration when the original promise was owed to a third party.
Restoration of Land in Easements #44
The holder of an easement has the right to enter the land to make repairs to the easement. Where those repairs somehow alter or damage the land, the easement holder must reasonably restore the land to the condition that it was in before the repairs were made.
Misjoinder #2176
The proper response to misjoinder is not a motion to dismiss, but a motion to sever and request separate lawsuits.
Strict Liability Crime #422
Strict liability crimes are those for which a criminal defendant is held liable for an offense even if mens rea is absent. Because strict liability crimes do not require mens rea, the vast majority of strict liability crimes are less serious regulatory offenses meant to protect the public welfare. For MBE purposes, besides statutory rape, strict liability criminal offenses are regulatory in nature and intended to prevent public harm.
Federal Common Law #2161
Post-Erie, federal common law is still applied in certain instances, even when the basis for federal jurisdiction is diversity. In determining whether to apply federal common law in diversity cases whose subject matter bears some relation to a federal statute, courts employ a balancing test, which weighs federal interests against state interests.
Monetary Sanction #2118
A court must not impose a monetary sanction on a represented party on the ground that the party’s attorney violated Rule 11(b)(2). Thus, while the monetary penalty might be appropriate for the attorney, it cannot be imposed on a client.
Life Tenant vs Waste
A life tenant has a duty not to commit voluntary or permissive waste with respect to the property during their life tenancy. A failure to keep the property in repair, to pay taxes on the property, or pay interest on any mortgage on the property all constitute permissive waste. Voluntary waste, on the other hand, is an affirmative act that serves to somehow damage the land. This “damage,” however, is not necessarily an act that reduces the value of the land. For example, a life tenant’s affirmative act of changing the basic use of the land during his tenancy would be characterized as “damage” to the land that constitutes voluntary waste even if the land value increased as a result. The life tenant is held liable to the remainderman for any waste during his or her life tenancy.
Easement Holder Duty to Maintain #162
An easement holder is required to make any repairs to the easement that become necessary over time. The easement holder has the right to enter land owned by the party that the easement crosses (the servient estate) to make repairs to that easement. Where the repairs somehow alter or damage the land, the easement holder must reasonably restore the land to the condition that it was in before the repairs were made. Furthermore, the servient estate has no obligation to maintain or make repairs to the easement. The easement holder is solely responsible for those tasks.
Conflicting Meanings of a Term In K
When each of the parties has a different understanding of the meaning of a term, if one party either knows or has reason to know that they have different understandings of the term, but the other party does NOT know or have reason to know that the parties have a different understanding of what the term means, then the “innocent” party’s meaning (i.e., the party who does not realize they disagree) will control.
Objections to Instructions #2285
A party who objects to an instruction or the failure to give an instruction must state on the record the objection, stating distinctly the matter objected to and grounds for the objection. In other words, the objecting party must give the trial judge a chance to reconsider and correct his mistake.
Personal Jurisdiction Long Arm Statute #2139
Personal jurisdiction analysis involves two questions, including whether:
(i) the state’s long-arm statute grants jurisdiction; AND
(ii) the 14th Amendment Due Process Clause of the Constitution allows the court to enforce a judgment against the defendant.
If the court is unable to exercise personal jurisdiction over a defendant based on the state’s long-arm statute, the analysis ends. Thus, although the U.S. Supreme Court held in McGee v. International Life, 355 U.S. 220 (1957) that a non-resident defendant’s single transaction within a forum may support personal jurisdiction, this is insufficient if the state’s long-arm statute does not support jurisdiction over the defendant.
Continuous Possession for Advers Possession #870
Continuous possession only requires the degree of occupancy and use that the average owner would make of the property. Although the agency took the waste out of Blackacre for four weeks each year, it is not enough to defeat continuous possession.
Judgment Lien #671
A judgment lien may be made against an individual or business and allows the creditor to access the debtor’s business, personal property, and real estate, among other assets, to pay the judgment. A plaintiff who obtains a monetary judgment is described as a “judgment creditor,” while the defendant becomes a “judgment debtor.”
The majority rule states that a plaintiff who obtains a judgment lien under this kind of statute is not protected by any recording acts from a prior unrecorded conveyance made by the defendant. This is because a plaintiff is not a bona fide purchaser, as he did not pay value for the judgment, or the judgment attaches only to property owned by the defendant and not the property the defendant has previously conveyed away, even if that conveyance was not recorded.
Procedural Due Process Right to Notice and Hearing #733
Once you determine that a person’s property interest is being impaired, you have to determine exactly what “process” the person is entitled to receive. Proper process typically involves two requirements: (i) notice; and (ii) an opportunity to respond before the termination of that interest. For example, a public employee who is subject to removal only for “cause” (and who, therefore, has a property interest in his job) generally must be given notice of charges against her that are to be the basis for her job termination, and a pre-termination opportunity to respond to those charges. However, the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.
JMOL & Motion for New Trial #2300
A JMOL or a renewed JMOL motion may be granted if a reasonable jury would not have a legally sufficient basis to find for the nonmoving party. In contrast, a new trial may be granted if the verdict was against the manifest weight of the evidence, to correct an error, or because the verdict was excessive or inadequate. If the jury has found for the moving party then JMOL cannot be granted.
Defamation of Private Person Not a Matter of Public Concern #769
To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the part of the defendant; (ii) that the defamatory language was of or concerning the plaintiff; (iii) publication of the defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff. Where defamation refers to a public figure or involves a matter of public concern, the plaintiff also needs to prove (v) falsity and (vi) fault by the defendant.
Further, where defamation is spoken (slander), the plaintiff must prove special (i.e., pecuniary) damages, unless the verbal defamation falls within one of four exceptions, which are considered slander per se: (i) criminal activity; (ii) occupational misconduct; (iii) sexual misconduct; or (iv) loathsome disease.
Kidnapping #564
Kidnapping is defined as the movement of a human being against that person’s will. Attempted kidnapping requires that the defendant have the intent to commit a kidnapping and take a substantial step toward the commission of kidnapping.
Vesting of Intended Third-Party Beneficiary’s Rights #36
A third party acquires standing to enforce a promise only if that party is an intended beneficiary of the promise. The promisor and promisee retain the power to modify or discharge a duty owed to an intended beneficiary until the beneficiary’s rights vest. The beneficiary’s rights will vest if he manifests assent to or materially changes his position in justifiable reliance on the promise before receiving notice of the discharge.
Physician-Patient Privilege #674
- Most States→recognize the privilege if (1) it’s a confidential patient communication, (2) made to a physician, (3) for the purpose of medical diagnosis or treatment.
- The patient holds the privilege, BUT it may be waived when a medical condition is placed in issue (i.e. personal injury lawsuit).
- Federal Courts→DO NOT recognize the privilege.
- However, state law governs privilege for civil cases in federal court on a claim/defense when state law supplies the rule of decision.
Revocation Gratuitous Assignment #978
When a contract right is assigned to a party gratuitously (i.e., without receiving anything in exchange), the assignor retains the power to revoke the assignment if done prior to receiving payment from the obligor, or before the assignee has relied on the assignment or brought suit to enforce it. Revocation may be effected by giving notice of revocation, obtaining performance from the obligor or assigning the same contract right to a different assignee. Until the obligor receives notice of an assignment, the obligor may discharge its contractual duty by rendering performance to the assignor.
Loyalty Oaths #328
The government may generally not require an applicant to sign a loyalty oath. However, an oath is valid if its contents require the applicant to refrain from conduct that would be grounds for punishing him or denying him the job (e.g., an oath that the applicant will support the Constitution of the United States is valid). Generally, the government may not require an applicant to sign a loyalty oath. However, an oath that requires public employees to “support the Constitution of the United States” and the state constitution is constitutional. An oath required “to oppose the overthrow of the government . . . by force, violence, or by an illegal or unconstitutional method” has also been found to be constitutional.
Impeachment Through Contradiction #1430
One method of impeachment is to contradict the witness’s testimony, which the attacking party may achieve in four possible ways: (i) using cross-examination to get a witness to concede that she was wrong in her direct testimony, or at least get her to hedge or retract what she’d previously stated unequivocally; (ii) using other previously-introduced testimony or physical evidence as a weapon during cross to show that the witness had lied or is mistaken; (iii) showing that the witness has previously made statements inconsistent with the witness’s testimony at trial (this is usually done via impeachment by prior inconsistent statement); or (iv) introducing new evidence – either testimony by a second witness or physical evidence – showing that the original witness’s story is not correct, usually after the witness has left the stand. When impeachment by contradiction is attempted, the most important rule to consider is the “collateral issue” rule, which bans extrinsic evidence on collateral issues. The collateral issue rule will not ban such evidence, however, when the issue is material or important to the outcome of the case.
Evidence Relevancy #1005
The admissibility of evidence is determined by its relevance to the case, not its possible explanations.
Evidence Relevancy #1005
The admissibility of evidence is determined by its relevance to the case, not its possible explanations.
Renouncing Soliciation MPC #1169
The Model Penal Code does state that the solicitation can be renounced if the man gave up his intent and stopped the solicited party from committing the offense.
License vs Profit A Prendre #440
Like an easement, a profit is a nonpossessory interest in land. The holder of the profit is entitled to enter upon the servient tenement and take the soil or a substance of the soil. Licenses privilege their holder to go upon the land of another. It is merely a privilege and is revocable at the will of the licensor. A license is personal to the licensee and not alienable. Unlike a license, however, a profit is a property right. Because it is a property right, profits are afforded all the usual statutory and constitutional protections associated with such rights. Profit = right to natural resources on land e.g. minerals, soil
Diclosure of Exculpatory Material to D #1534
The government has a duty to disclose exculpatory material to the defendant. The untimely disclosure of evidence favorable to the defense (including impeachment information), whether willful or inadvertent, is unconstitutional under the Due Process Clause. Such a Brady violation is grounds for reversal or a new trial if the defendant can prove that: (i) the evidence was favorable because it is impeaching or exculpatory; and (ii) prejudice resulted, meaning earlier disclosure of the evidence would have created a reasonable probability of a different outcome.
New Issues at Appellate Level #2323
The general rule is that new issues may not be raised for the first time on appeal. However, there are exceptions. Pure matters of law may be considered on appeal, even if not properly presented in the trial court when all the necessary facts are complete in the record. The appellate court may substitute its judgment in a pure interpretation of the law for the judgment of the trial court. This includes the applicability of a particular statute in a given case.
Elements of Deed #713
- Every deed should contain the following information:
- An indication that it is a deed
- A description of the property involved
- The signature of the individual or entity that is transferring the property
- Data regarding who is taking title to the property
- As deeds do not require much information, the document itself is often very short. However, the document may also contain additional information such as the conditions or assurances that go along with the transfer. Each deed must also be validly delivered to the individual taking ownership of the property. In most situations, it should also be filed with the appropriate authority as well. Every real property transfer will require the use of some type of deed. It is important to use the legal description of the property for the deed so that it can be recorded accurately.
Implie Contracts #927
Implied contracts are formed by manifestations of assent other than oral or written language, i.e., by conduct (e.g., if a person sits in a barber’s chair and the barber cuts his hair, a contract has been formed by the parties’ conduct).
Part Performance vs Statute of Frauds #83
Part performance standing alone does not make a contract that is within the Statute of Frauds enforceable. Those jurisdictions adopting the approach in the Restatement of Contracts allow specific enforcement of a promise to convey land if the party seeking enforcement “in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can only be avoided by specific enforcement.”
Conspiracy #182
Conspiracy is an agreement between two or more people to commit a crime. A charge of conspiracy requires an agreement that a crime be committed and that at least two of the co-conspirators intend that the crime be committed. In some jurisdictions, an overt act is also required.
Open Fields Doctrine #1120
A person does not have a reasonable expectation of privacy in objects held out to the public. Further, under the open fields doctrine, areas outside the curtilage (dwelling house and outbuildings) are subject to entry and search and unprotected by the Fourth Amendment. Even buildings such as barns are considered to be outside the curtilage of a house.
Payment Obligations & Tender in Silent K #1084
Under Uniform Commercial Code (UCC) § 2-310, unless the contract specifies otherwise, a buyer’s obligation to pay is conditioned upon the tender of the goods by the seller. Tender is effected when the seller makes conforming goods available for the buyer’s disposition and gives the buyer notice sufficient to enable the buyer to take delivery. Unless the contract specifies otherwise, under UCC § 2-308, the place of delivery is the seller’s place of business, and payment is due at the time and place where the buyer is to receive the goods.
Promissory Estoppel #1030
Promissory estoppel occurs when one party makes a gratuitous promise to another, and the non-promising party changes-position or acts (or does not act) in reliance upon that promise.
Real Property Conflicts of Law #2329
When there is a conflict of laws as to a real property issue, the choice of law rules of the situs (the state where the property is located) will be followed. This doctrine means that the law governing the property dispute is dependent upon and varies with the location of the property for purposes of the conflict of laws.
Involuntary Confessions vs Mental Disease #661
The Fourteenth Amendment protects suspects from involuntary confessions. However, only official coercion or compulsion will cause a confession to be involuntary. A confession is not considered involuntary simply because it is the product of a mental disease that prevents the confession from being of the defendant’s free will.
Additur #2148
If the trial judge believes that the jury’s compensatory damages are too low (inadequate), he may NOT offer the defendant the choice of accepting a higher award (“additur”) or submitting to a new trial. “Additur” is not allowed in federal cases because it violates the Seventh Amendment. However, additur is permissible in many state cases because the Seventh Amendment does not apply. In federal court, if the judge believes damages are too low, the court may grant a new trial.
Home Owner’s Association Member Liability for Torts #2335
ypically, members of the board and members of the association are not jointly and severally liable for torts that occur on or that are caused by the commonly held property. Board members are typically only personally liable for condominium association matters if they breach a fiduciary duty to the association. Therefore, there is no basis for a suit against an individual board member unless the plaintiff successfully shows that the board member acted with negligence, willful misconduct, bad faith, or outside the board’s authority.
Compulsory Joinder #2256
Joinder is required for any person (i.e., they are deemed a “required party”) who either:
(i) is required for the court to be able to accord complete relief among the existing parties; OR
(ii) has such an important interest in the case such that NOT joining them will either:
cause them a practical impairment or impediment in protecting their interest; OR
expose an existing party to a substantial risk of multiple or inconsistent liability.
If a party is deemed “required” or “necessary,” then joinder is “compulsory,” meaning the required party should be joined. However, the court must also ensure that joinder of the required party will not destroy its jurisdiction.
If the required party cannot be joined for any reason, such as because their joinder will destroy jurisdiction, the court must make a choice: whether “in equity and good conscience,” the case should proceed without the required party, OR, if the absent required party should be deemed “INDISPENSABLE,” meaning the court dismisses the case entirely.
To determine whether the required (absent) party is INDISPENSABLE, warranting dismissal the court examines the following factors:
the extent of any prejudice to the absent party or existing parties following a judgment;
whether such prejudice may be reduced or abated by provisions in the judgment, relief offered, or other avenues;
whether a judgment issued without the absent party will be adequate; AND
if the case is dismissed for nonjoinder, whether the plaintiff will have an adequate alternative remedy.
Preliminary Questions Concerning Admissibility of Evidence #131
Preliminary questions concerning the admissibility of evidence shall be determined by the court. It is up to the judge to determine whether the investigator can testify as to the authenticity and contents of the libelous letter. In making an admissibility determination, the court is not bound by the rules of evidence (e.g. hearsay) except those with respect to privileges.
Hearing Outside the Presence of the Jury #1310
A confession made by a person under arrest and subjected to interrogation can be admitted into evidence at trial only if Miranda warnings were properly given beforehand. If D contends that no Miranda warnings were given, she is entitled to a hearing on the issue that must be conducted so that the jury cannot hear it.
Prior Identification by Available Witness #465
A prior statement by a witness, if that witness is testifying and available for cross-examination, is not hearsay and is admissible, if it is one of identification of a person made after perceiving the person.
Sanctions vs Safe Harbor #2252
Party seeking sanctions must serve a separate motion on the other party, but may not file the motion if the challenged paper, claim, or defense is withdrawn or appropriately corrected within 21 days after the service (called the “safe harbor” period).
Erroneous Verdicts #2214
Erroneous verdicts may be set aside if the court believes that the jury did not follow its instructions properly.
Under FRCP 49(b), three scenarios are possible:
(i) if the facts are consistent with the verdict, the verdict will be entered;
(ii) if the findings of fact are inconsistent with the verdict, the judge may:
- enter a judgment consistent with the interrogatory answers, notwithstanding the general verdict;
- direct the jury to deliberate further; or
- order a new trial; OR
(iii) if the answers are inconsistent with each other AND the verdict entered, the judge must send the case back to the jury for further deliberation or order a new trial.
Mistake of Law/ Mistake of Fact #1003
Mistake of law is almost never a defense to a crime. Lacking knowledge that an act constitutes a crime, even if the lack of knowledge is reasonable, is not a defense to that crime.
Mistake of fact is available as a defense only if it negates a requisite intent element (i.e., mens rea) for the crime. Specific intent requires the defendant to have a specific intent or objective to commit the crime. For a specific intent crime, any mistake of fact is a defense. Specific intent crimes include assault as an attempted battery.
Slander #475
In the case of slander (verbal defamation), the plaintiff must plead and prove special damages (pecuniary). Four exceptions, which do not require special damages, include if the defendant made allegations regarding (i) criminal activity; (ii) misconduct regarding plaintiff’s occupation; (iii) sexual misconduct; and (iv) plaintiff having a “loathsome” disease.
Executory Accord #1317
An executory accord is an agreement by the parties to a contract by which one promises to render a substitute performance in the future and the other promises to accept that substitute performance in discharge of the existing duty. An accord does not discharge the previous contract duty at the moment the accord is made; no discharge occurs until the terms of the accord are performed. The performance, according to the terms of the accord, acts as a satisfaction. The original obligation will be discharged with the performance agreed to in the accord and the parties will not be able to sue for damages as a result of any injuries by the new performance.
An accord generally requires consideration, which can be less than what was called for in the original contract. Foakes v. Beer provided that partial payment of a liquidated debt is invalid for a lack of consideration. However, this rule does not apply where there is a compromise on a claim disputed in good faith. In other words, payment of a lesser amount than is due on a valid claim constitutes valid consideration if there is a bona fide dispute as to the amount owed, made in good faith.
Evidence of Other Crimes or Misconduct #764
Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant’s character or disposition to commit the crime charged. Fed. R. Evid. 404(b). While acknowledging that prior acts or crimes are not admissible to show conformity or to imply bad character, FRE 404(b) goes on to say that such prior acts or crimes may be admissible for other purposes (e.g., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) whenever these issues are relevant.
Excessive Use of Easements
The holder of an easement has a right to use a tract of land (called a servient tenement) for a special purpose, but has no right to possess and enjoy the tract of land. The owner of the servient tenement continues to have the right of full possession and enjoyment of the land, subject only to the limitation that he cannot interfere with the right of special use created in the easement holder. Where the holder of the dominant estate misuses an easement by excessive use, the servient holder’s proper remedy will be an injunction against further misuses or damages, not forfeiture of the easement.
Tenant’s Legal Right to Possess vs Actual Possession #1402
Unless the lease provides otherwise, the landlord is obligated to deliver the legal right to posses the premises to the tenant at the commencement of the lease term. However, courts are sharply split as to whether the landlord also impliedly warrants that he will deliver actual possession at the start of the lease term. This situation usually arises when a previous tenant holds-over on a previous lease.
Under the “American view,” the landlord only has the duty to deliver legal possession, not actual possession, of the premises. Under the “English rule,” the landlord does have the duty to deliver actual possession to the tenant at the start of the lease term. The English rule gives the lessee the right to terminate the lease and recover damages for the breach for the landlord failing to deliver possession.
Proximate Causation - Negligence
A defendant is not liable for unforeseeable events that occur after the defendant’s actions and cause the harm. The classic examples of such superseding events are acts of God (lightning strikes, etc.) and intentional crimes.
Guilty Plea #699
A guilty plea waives various rights, including the right to a jury trial under the Sixth Amendment. The court must establish that the plea is voluntary and intelligent by addressing the defendant in open court on the record. McCarthy v. United States, 394 U.S. 459 (1969). The judge must be sure that the defendant knows and understands: (i) the nature of the charge(s) against him and the crucial elements of the crime(s); (ii) the maximum possible penalty and any mandatory minimum; and (iii) that he has the right to plead not guilty and that if he does plead guilty, he waives the right to trial. If the defendant is not fully advised of each of his constitutional rights and/or does not knowingly and voluntarily waive each of those rights, the plea will be subject to a motion to set it aside.
Erie Doctrine ##2151
Federal standards are not considered “law” so if there is a state law that replaces a federal standard (e.g. excessive to shock the conscience) then the state standard should be applied,
Re-direct Examination #151
Although the extent of re-direct is in the sound discretion of the court and the court may permit re-direct on some minor matters, the court is only required to permit re-direct on matters that were not discussed on direct. A court may limit re-direct examination at its discretion, but must allow it to reply to new and significant matters raised on cross-examination. Not every matter raised in cross-examination must be permitted to be questioned about in re- direct, only those that raise significant new issues.
Dead Man’s Statute #1062
A Dead Man’s Statute attempts to equalize opportunities of showing proof in litigation that involves a decedent and a survivor where the suit’s subject matter is about a transaction or event that occurred while they were both alive. In its most extreme form, it prevents a survivor from testifying at all about the transaction between him and the decedent. However, an increasing number of states have enacted more liberal Dead Man’s Statutes, which typically permit the survivor to testify, but equalize his advantage by allowing the decedent’s estate to introduce hearsay statements made by the decedent or other evidence that would otherwise be inadmissible. There is no federal Dead Man’s Statute, meaning the Federal Rules of Evidence (FRE) do not directly limit a survivor’s ability to testify against a decedent.
Minor Breach of Contract #252
In a contract under common law, a non-breaching party is required to perform when the breach is minor. A failure to complete a contract by a specified time is a minor breach unless there is a “time is of the essence” clause in the contract. If there is a minor breach, but the breaching party still substantially performs on the contract, the non- breaching party must perform but can sue for any damages that result from the minor breach.
Agency to Fill in Blank Deed #57
The only requirements that must be met for a conveyance of land to be valid (and thereby transfer legal title in that land from one party to another) are execution and delivery of the deed. The execution requirement is satisfied as long as the deed is signed by the party to be charged (the seller). However, execution and delivery of a deed will not suffice to establish legal title where the deed fails to adequately identify the grantee to whom it was delivered and the exact plot of land it purports to convey. Nevertheless, if the land description is left blank, the grantee may fill in the description if they have the explicit authority to do so.
Motion for Summary Judgment #2204
Party seeking summary judgment has the burden of producing information that clearly establishes there is no factual dispute for a jury to resolve. Unless a local rule or court order dictates otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of discovery.
Life Tenant Liability #1056
The general rule is that a life tenant is responsible for the real estate taxes on the property and interest on the principal to the extent of income from the property. However, a life tenant is liable to the holder of the future interest for property taxes only to the extent of rents received, or the fair market value of the property if the life tenant is occupying the property. In other words, if the life tenant is not occupying the property, and not renting the property, then the future interest holder upon coming into present possession of the property will be unable to sue the former life tenant for unpaid taxes on the property.
Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, a defendant must show two things: (1) that defense counsel’s performance was deficient, and (2) that the deficiency was prejudicial. Defense counsel must inform a defendant of the possibility that a guilty plea will affect their immigration status.
The “prejudice” inquiry focuses on a defendant’s decision-making, an inquiry that does not turn solely on the likelihood of conviction at trial.
Identifying Goods to a K
Goods are identified to the contract when the seller ships, marks, or otherwise designates them as goods to which the contract refers.
