MBE questions to work on Flashcards
The defendant was on trial for murder. The defendant called a witness to testify to an alibi. On cross-examination of the witness, the prosecutor asked, “Weren’t you on the jury that acquitted the defendant of another criminal charge?”
What is the best reason for sustaining an objection to this question?
The probative value of the answer would be substantially outweighed by its tendency to mislead.
REMINDER: Under the Federal Rules, virtually all witnesses with personal knowledge are competent to testify. [Fed. R. Evid. 601] A witness is not rendered incompetent simply by having served on a jury in a prior case involving a party to the current suit. Such prior jury service might render the witness’s testimony unpersuasive, but it would not make it inadmissible.
To secure a loan of $100,000 from a bank, the owner in fee simple of a parcel of land conveyed a deed of trust for the land to the bank. The deed of trust contained a “power of sale” clause, permitted by the jurisdiction, which allowed the bank to sell the property in the event of default without the necessity of a judicial foreclosure action. After several years, the owner defaulted on his loan payments to the bank. The bank informed the owner that it was exercising its power of sale. After appropriate notices, the bank conducted a public sale of the land. The bank was the sole bidder and obtained the property for $80,000, which was $10,000 less than the outstanding balance on the loan plus the expenses of the sale. One month later, the owner notified the bank that he wanted to pay off the loan and extinguish the deed of trust, and was prepared to tender $80,000 to do so. The bank insisted that the owner must tender $90,000 to pay off the loan.
If a court in the jurisdiction will require the bank to accept only $80,000 under the circumstances above, what is the likely reason?
The owner was exercising a statutory power rather than an equitable power.
If the owner can compel the bank to accept his offer, it will be because he has a statutory power to redeem the property after the foreclosure sale has occurred. In all states, the equity of redemption provides the borrower with an equitable right, at any time prior to the foreclosure sale, to redeem the land or free it of the mortgage or lien by paying off the amount due or, if an acceleration clause applies, the full balance due. Only about half the states, however, give the borrower a statutory right to redeem for some fixed period after the foreclosure sale has occurred; the amount to be paid is generally the foreclosure sale price, rather than the amount of the original debt. Thus, if the owner can redeem the land for $80,000, it will be based on the jurisdiction’s statutory power of redemption
On February 1, the owner of a bowling alley read in a magazine an ad from a major manufacturer of bowling balls offering sets of 40 balls in various weights and drilled in various sizes for $10 per ball. The owner immediately filled out the order form included in the ad for the 40 balls and deposited it, properly stamped and addressed, into the mail. On February 2, the bowling alley owner received in the mail a letter from the manufacturer, sent out as part of its advertising campaign, stating in relevant part that it will sell the bowling alley owner 40 bowling balls at $10 per ball. A day later, on February 3, the manufacturer received the bowling alley owner’s order. On February 4, the balls were shipped.
On what day did an enforceable contract arise?
The contract arose when the balls were shipped. The general rule is that an offer can be accepted by performance or a promise to perform unless the offer clearly limits the method of acceptance. Here, the offer would be the bowling alley owner’s order, because a magazine ad is usually held to be merely solicitation to accept offers rather than an offer. Thus, the manufacturer accepted and the contract was formed when it shipped the balls.
In a criminal battery case brought against the defendant, the prosecutor asked the court to take judicial notice of the fact that a car driven from Chicago to Detroit has to cross state lines. The defense attorney raised no objection, and the judge declared that she was taking judicial notice of the fact as requested by the prosecution.
What is the effect of such judicial notice?
A To raise an irrebuttable presumption.To raise an irrebuttable presumption.
B To satisfy the prosecutor’s burden of persuasion on that issue.To satisfy the prosecutor’s burden of persuasion on that issue.
C To shift the burden of persuasion on that issue to the defendant.To shift the burden of persuasion on that issue to the defendant
D That the judge should instruct the jury that it may, but is not required to, accept the noticed fact as conclusively proven.
D That the judge should instruct the jury that it may, but is not required to, accept the noticed fact as conclusively proven.
In criminal case, jury decides if prosecution has met burden. Prosecution has to meet every element beyond a reasonable doubt.
In civil trial, prosecution could have burden satisfied on this issue.
The owner of an old car parked it in front of his house with a “for sale” sign in the windshield. In response to an inquiry from his neighbor, the car owner said that he would take $400 for the car. The neighbor responded, “You’ve got a deal.” Because it was a Sunday, and the banks were closed, the neighbor told the car owner that he would come to his house with the $400 the next day at about 6 p.m. The car owner said that was fine. At 9:15 the next morning, the car owner called his neighbor and told him that when they had talked the previous day, he forgot that he had just put two new tires on that car and that he would need an extra $50 to cover their cost. The neighbor agreed to bring $450 in cash to the car owner’s house at about six o’clock.
Is the neighbor legally bound to pay the car owner the additional $50?
Yes, because the contract, as modified, does not need to be in writing.
Oral mod ok for sale of goods under $500. Also reminder don’t need consideration for sale of goods.
The neighbor must pay the car owner the additional $50 because the parties have an enforceable contract. A contract for the sale of goods (the car) was formed when the neighbor said, “You’ve got a deal.” The parties then orally agreed to a modification of the contract when the car owner called his neighbor the next morning. Under the Statute of Frauds provision in the UCC, which applies to all contracts for the sale of goods, a promise requires a writing signed by the party to be charged to be enforceable if it is for the sale of goods of $500 or more. Here, the contract as modified is under $500, so it is enforceable even though it is not in writing.
A town adopted an ordinance providing that a person must have been a resident of the town for at least one year to be eligible to vote in school board elections. A resident who moved to the town seven months ago attempted to register to vote in the school board elections scheduled for the next month. However, the town clerk refused to register the resident because he will not have resided in the town for a full year prior to the election. The resident filed a class action suit on behalf of all of the new residents of the town, challenging the validity of the one-year residency requirement.
Which of the following statements is correct?
A If the resident’s suit is not heard before the election, it will be dismissed as moot, because the resident will have met the residency requirement by the time of the next annual election.If the resident’s suit is not heard before the election, it will be dismissed as moot, because the resident will have met the residency requirement by the time of the next annual election.
B The resident will prevail even if the matter is not decided until after next month’s election.The resident will prevail even if the matter is not decided until after next month’s election.
C As long as there is some legitimate purpose for the one-year residency requirement, such as the need to prepare voting lists, the residency requirement will be upheld.As long as there is some legitimate purpose for the one-year residency requirement, such as the need to prepare voting lists, the residency requirement will be upheld.
D The resident will lose because one-year residency requirements have been held to be permissible restrictions on the right to vote in local elections.The resident will lose because one-year residency requirements have been held to be permissible restrictions on the right to vote in local elections.
B The resident will prevail even if the matter is not decided until after next month’s election.
This question is about mootness with a class action.
REMINDER: residency requirements come under strict scrutiny because voting is a fundamental right. Would need gov to show COMPELLING INTEREST.
Residency Restrictions on voting for 30 days has been ruled ok, but one year is unconstitutional because it violates equal protection clause by treating new residents differently from old residents. Given strict scrutiny bc fundamental right being infringed.
A hockey player who was playing in the final game of the season before a hostile crowd in the opponent’s packed stadium had an opportunity to get his team into the playoffs, but he missed a shot into an open net as the horn sounded, ending the game. As the crowd cheered and jeered, the puck bounced back to him and he shot it in anger toward the stands. A fan who had been looking the other way turned back toward the rink just in time to be struck in the face by the puck. He suffered a broken nose and a severe gash under his eye. After the game, the league commissioner fined the player for violating league rules by intentionally directing the puck out of the playing area.
If the fan sues the player for battery, will the fan likely prevail?
yes. hockey player had requisite intent for tort of battery.
i) an act by defendant that brings about a harmful or offensive contact to the plaintiff’s person, (ii) intent on defendant’s part to bring about harmful or offensive contact, and (iii) causation.
A man and a woman were in a two-car traffic accident. Immediately after the accident, the man was treated by a physician at a nearby hospital’s emergency room. The man later filed a negligence action against the woman in federal district court, seeking compensatory damages. The woman now seeks discovery regarding the emergency room physician’s observations, opinions, and treatment of the man.
Is the woman entitled to discovery regarding that information?
yes. The woman is entitled to discovery regarding the physician’s observations, opinions, and treatment of the man because the physician developed opinions about the man’s injuries for purposes other than litigation or trial.
The defendant is on trial for fraudulently signing a check for $10,000. The defendant has denied that she signed the check. The prosecutor calls the landlord of the apartment building in which the defendant has resided for three months before her arrest. The landlord intends to testify that it is the defendant’s signature on the check, and he bases his opinion of the authenticity of her signature on the ground that he saw her sign the lease to his apartment.
Should the trial court find this testimony admissible?
A Yes, because there was only a short period of time between when the landlord saw her sign the lease and the time of trial.
B Yes, because the landlord has previously seen the signature.
C No, because the landlord has seen the signature only once and is not acting as a handwriting expert.
D No, because the testimony is inherently unreliable.
B Yes, because the landlord has previously seen the signature.
During a presidential campaign, a candidate’s campaign manager secretly engaged in activities that may have violated both state and federal laws. After the candidate was elected President, the FBI investigated the manager’s activities as well as whether the President was involved. After the campaign manager was indicted in federal court, but before trial, the President granted a blanket pardon to the campaign manager for “all federal crimes that may have been committed in the past 20 years.”
Is the pardon valid?
Yes, because the pardon power is an unqualified power (except as to impeachment).
The defendant discovered that his friend had hit and killed a pedestrian while driving that afternoon, and that he had fled from the scene of the crime before the police arrived. To keep his friend out of trouble, the defendant fixed all the dents in the car caused by the collision and had the vehicle painted a different color. The friend, distraught about hitting and killing someone, eventually turned himself in and told the police what he had done and what the defendant had done for him. The defendant was charged as an accomplice to vehicular manslaughter in a state that follows the modern trend regarding accomplice liability.
How should the defendant be found?
A Not guilty, because he only helped his friend after the crime was already committed.
B Not guilty, because he had no affirmative duty to the victim.
C Guilty, because he aided his friend in the crime.
D Guilty, because as a party to the crime, he is criminally responsible for all crimes committed by his co-felons.
A Not guilty, because he only helped his friend after the crime was already committed.
The defendant is guilty of accessory after the fact. But not manslaughter as an accomplice.
An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the offense.
Under modern statutes, accomplices are generally treated as principals. A third category is “an accessory after the fact.” An accessory after the fact is one who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed.
When a buyer accepts goods that turn out to be defective, what can buyer recover?
When a buyer accepts goods that turn out to be defective, he may recover as damages any “loss resulting in the normal course of events from the breach,” which includes the difference between the value of the goods accepted and the value they would have had if they had been as warranted, plus incidental and consequential damages.
A fugitive was wanted for murder. The authorities offered the following reward: “$20,000 to anyone who provides
information leading to the arrest and conviction of this fugitive.” A private detective knew of the reward, located the
fugitive, and brought him to the authorities, who arrested him. The authorities then determined that while the fugitive
had, in fact, committed the crime, he had been directed to commit the crime by his boss. The authorities and the
fugitive then agreed that in exchange for the fugitive’s testimony against his boss, all charges against the fugitive
would be dropped. The fugitive testified and was released. The authorities refused to pay the reward to the private
detective on the ground that the fugitive was never convicted.
Would the private detective be likely to prevail in a breach of contract action against the authorities?
A: No, because the private detective failed to notify the authorities that he had accepted the reward offer.
B: No, because the express conditions set out in the reward offer were not met.
C: Yes, because the authorities’ agreement with the fugitive was against public policy.
D: Yes, because the authorities themselves prevented the conviction of the fugitive
D: Yes, because the authorities themselves prevented the conviction of the fugitive
Question
A pharmacist sued her employer, a hospital, in federal court in State A, claiming that the hospital violated the
pharmacist’s rights under Title VII of the federal Civil Rights Act during the two weeks the pharmacist worked for the
hospital. After two days of testimony, the jury returned a verdict for the pharmacist and awarded her $2,750,000 in
compensatory damages.
Under federal law, a judge who believes compensatory damages are so excessive as to “shock the conscience” may
offer the plaintiff the choice between a new trial or remittitur of the excessive damages. Under State A law, judges can
order remittitur if the court thinks damages are “excessive.”
Which motion should the hospital file to challenge the damages award?
A: Motion for remittitur, on the ground that the jury’s damage award “shocks the conscience.”
B: Motion for remittitur, on the ground that the jury’s damage award is “excessive.”
C: Motion for remittitur and, in the alternative, a motion for a new trial, on the ground that the jury’s damage
award “shocks the conscience.”
D: Motion for remittitur and, in the alternative, a motion for a new trial, on the ground that the jury’s damage award is
“excessive.”
C: Motion for remittitur and, in the alternative, a motion for a new trial, on the ground that the jury’s damage
award “shocks the conscience.”
FQ. fed law applies
Question
A novelist wished to file suit against an editor for an alleged violation of copyright law. The novelist’s attorney, a recent
law school graduate, drafted and filed on behalf of the novelist. The complaint purported to state a claim for relief
under copyright law but, unbeknownst to the attorney, did not state such a claim. The attorney did not recognize the
defect, so she did not request an extension or modification of existing copyright law or articulate any theory that would
have supported an extension or modification of existing copyright law.
The editor first moved to dismiss the complaint for failure to state a claim. Thereafter, the editor made a motion for sanctions claiming that the novelist’s complaint was filed in bad faith because the legal contentions contained in the complaint could not be warranted by existing law. The novelist’s attorney did not withdraw or appropriately correct the
complaint for more than 21 days, and the editor then moved for sanctions. The court held that the novelist’s complaint
was made in bad faith.
Should the court impose monetary sanctions?
A: Yes, upon the novelist, for payment of all reasonable attorney’s fees directly resulting from the violation.
B: Yes, upon the novelist and the attorney, for payment of all reasonable attorney’s fees directly resulting
from the violation.
C: No, but the court should dismiss the novelist’s complaint with prejudice.
D: No, but it should admonish the lawyer regarding diligent legal research prior to filing pleadings and order
her to go through additional training
D: No, but it should admonish the lawyer regarding diligent legal research prior to filing pleadings and order
her to go through additional training
can’ t do sanctions on a party.
A company operates an aircraft maintenance and repair business serving the needs of owners of private airplanes. A
pilot contracted with the company to replace the engine in his plane with a more powerful engine of foreign
manufacture. The company purchased the replacement engine through a representative of the manufacturer and
installed it in the pilot’s plane. A short time after it was put into use, the new engine failed, and the plane crashed into
a warehouse, destroying the warehouse and its contents. The company was guilty of no negligence in the
procurement, inspection, or installation of the engine. The failure of the engine was caused by a defect that would not
be disclosed by inspection and testing procedures available to an installer. There was no negligence on the part of the
pilot, who escaped the disabled plane by parachute.
The warehouse owner recovered a judgment for damages from the pilot for the destruction of his warehouse and its
contents, and the pilot has asserted a claim against the company to recover compensation on account of that liability.
In that action, the pilot will recover
A: full compensation, because the engine was defective.
B: no compensation, because the company was not negligent.
C: contribution only, because the company and the pilot were equally innocent.
D: no compensation, because the warehouse owner’s judgment established the pilot’s responsibility to the warehouse
A: full compensation, because the engine was defective.
Strict liability. Company sold defective product.
Representatives of estates of individuals who died in an airplane crash in State A filed suit in federal court against the
foreign manufacturer of the aircraft that crashed. Foreign manufacturers may only be sued in federal court as a result
of the Foreign Sovereign Immunities Act (“FSIA”), which grants federal jurisdiction over foreign instrumentalities when
a foreign state engages in commercial activity. Prior to FSIA, foreign instrumentalities were not suable at common law.
The representatives’ claim is based on a wrongful death action that seeks money damages. The representatives
demanded a jury trial. The foreign manufacturer moved to strike the representatives’ jury demand.
Is the court likely to strike the jury demand?
A: No, because the representatives’ claim is legal for purposes of the right to a jury trial under the Seventh
Amendment.
B: No, because the representatives’ claim is equitable for purposes of the right to a jury trial under the Seventh
Amendment.
C: Yes, because a foreign manufacturer was not a proper defendant in a suit at common law in 1791.
D: Yes, because providing a jury trial under the Seventh Amendment would violate the FSIA.
C: Yes, because a foreign manufacturer was not a proper defendant in a suit at common law in 1791.
for a 7th amendment jury trial at common law, the question is whether the defendant would have been proper in 1791.
In practice, the Seventh
Amendment’s application to “suits at common law” means that if the suit would have been considered at common law
in 1791, there will be a right to a jury trial.
Question
A wholesaler brought a federal diversity action against a large pharmaceutical company for breach of contract. During
jury selection, one potential juror stated that five years earlier he had been an employee of the company and still owned several hundred shares of its stock. In response to questioning from the judge, the potential juror stated that he could fairly consider the evidence in the case.
The wholesaler’s attorney has asked the judge to strike the potential juror for cause.
Should the judge strike the potential juror for cause?
A: No, because the potential juror said that he could fairly consider the evidence in the case.
B: No, because the wholesaler’s attorney could use a peremptory challenge to strike the potential juror.
C: Yes, because other potential jurors still remain available for the jury panel.
D: Yes, because the potential juror is presumed to be biased because of his relationship to the company.
D: Yes, because the potential juror is presumed to be biased because of his relationship to the company.
owning stock is legit reason to dismiss for cause.
Question
The Personnel Handbook of a particular city contains all of that city’s personnel policies. One section states, “where
feasible and practicable, supervisors are encouraged to follow the procedures specified in this Handbook before
discharging a city employee.” Those specified procedures include a communication to the employee of the reasons for
the contemplated discharge and an opportunity for a pre-termination trial-type hearing at which the employee may
challenge those reasons. After a year of service, the secretary to the City Council was discharged without receiving
any communication of reasons for her contemplated discharge and without receiving an opportunity for a pretermination trial-type hearing. The secretary files suit in federal district court to challenge her discharge solely on
constitutional grounds.
Which of the following best describes the initial burden of persuasion in that suit?
A: The City Council must demonstrate that its personnel handbook created no constitutionally protected interest in city
employment or in the procedures by which such employment is terminated.
B: The City Council must demonstrate that the secretary’s termination was for good cause.
C: The secretary must demonstrate that state law creates a constitutionally protected interest in her
employment or in the procedures by which her employment is terminated.
D: The secretary must demonstrate that she reasonably believed that she could work for the city for as long as she
wished.
C: The secretary must demonstrate that state law creates a constitutionally protected interest in her
employment or in the procedures by which her employment is terminated.
Has to show she has a constitutional right that has been violated first.
Question
A seller owns a 400-acre tract of land with 5,000 feet of frontage on a county highway. The seller and a buyer entered
into a written agreement for the sale of a portion of the tract identified only as “a parcel of land, containing not less
than 100 acres and having not less than 1,000 feet of frontage on the county highway, whose exact location and
dimensions are to be determined by the parties hereto, at a price of $8,000 per acre.”
Shortly after the execution of the agreement, the parties met to stake out the parcel of land to be sold, but they could
not agree. The disagreement intensified, and the seller repudiated the contract.
The buyer has sued the seller for specific performance. The seller has asserted all available defenses.
Is the buyer entitled to specific performance of the contract?
A: No, because a contract for the sale of real property that requires further agreement on an essential element
cannot be specifically enforced.
B: No, because the purchase price was not fixed by, nor determinable under, the contract terms.
C: Yes, because the contract bound the parties to act in good faith and to agree upon the specific land to be
conveyed.
D: Yes, because the equity powers of the court enable the court to appoint a master, or to take other appropriate
action, to identify the land to be conveyed.
A: No, because a contract for the sale of real property that requires further agreement on an essential element
cannot be specifically enforced.
Rule is that SOF requires writing for sale of land to identify land to be sold. The writing in this case noted that the parties were yet to agree on what land was to
be conveyed. Equity cannot provide relief for this omission, and the Statute of Frauds makes the contract
unenforceable.
Question
A rectangular parcel of undeveloped land contained three acres and had 150 feet of frontage on a public street. The
applicable zoning ordinance required that a buildable lot contain at least two acres and have frontage of not less than
100 feet on a public street.
A brother and sister owned the land as tenants in common, the brother owning a one-third interest and the sister
owning a two-thirds interest. Neither of them owned any other real property.
The sister brought an appropriate action to partition the land and proposed that a two-acre rectangular lot with 100 feet of frontage be set off to her and that a one-acre rectangular lot with 50 feet of frontage be set off to the brother.
The brother’s defense included a demand that the land be sold and its proceeds be divided one-third to the brother
and two-thirds to the sister.
Who will prevail?
A: The brother, because partition by sale is the preferred remedy, unless a fair price is not the likely result of
a sale.
B: The brother, because the zoning ordinance makes it impossible to divide the land fairly.
C: The sister, because partition by sale is not appropriate if the subject property can be physically divided.
D: The sister, because the ratio of the two lots that would result from her proposal conforms exactly to the ownership
ratio.
B: The brother, because the zoning ordinance makes it impossible to divide the land fairly.
Although the subject property can be physically divided, it would not be fair to convey only 50 feet of
frontage to the brother.
The interests in a tenancy in common need not be equal. A tenant in common may bring an action to
partition the property. Partition in kind, in which there is a physical division of the common property, is preferred;
however, a partition by sale is allowed when a fair and equitable physical division of the property is impossible.
A state grand jury investigating a murder learned that the key suspect might have kept a diary. The grand jury issued
a subpoena duces tecum requiring the suspect to produce any diary. The subpoena made clear that the grand jury
was seeking only the diary and not any testimony from the suspect. The suspect refused to produce the diary, citing
his Fifth Amendment privilege against self-incrimination.
Under what circumstances, if any, may the grand jury compel production of the diary over the suspect’s assertion of
his Fifth Amendment privilege?
A: It may compel production without granting immunity, because the suspect was not compelled to write a
diary.
B: It may compel production only if the suspect is granted use and derivative use immunity from the act of
production.
C: It may compel production only if the suspect is granted transactional immunity.
D: It may not compel production of a private diary under any circumstances.
B: It may compel production only if the suspect is granted use and derivative use immunity from the act of
production.
A grand jury may compel the production of documents when (and only when) the suspect is given
immunity from the act of production, and this answer provides that the suspect would be receiving use and derivative
use immunity from the act of production. As such, the subpoena would not violate his right against self-incrimination in
this scenario.
A construction company that was putting in a swimming pool for a homeowner left a couple of large pieces of equipment in the backyard overnight. The equipment was not owned by the construction company but was leased from an equipment company, which was responsible for its repair and maintenance. After the workers had left, a seven-year-old boy came onto the homeowner’s property to play. The homeowner was aware that the boy often came onto his property to play with his dog. The boy climbed up on one of the pieces of equipment and began pushing buttons and moving levers. The engine started and the equipment began to move because the equipment company had not replaced a defective safety locking device on the ignition. The boy became frightened and jumped off, falling into the hole that had been dug that day, and was injured.
The boy’s parents brought suit against the homeowner and the construction company.
If the construction company is held liable for the boy’s injuries, may it recover anything from other tortfeasors?
Responses
A It may obtain indemnity from the equipment company because the equipment was negligently maintained in an unsafe condition.
B It may obtain contribution from the equipment company because the equipment was negligently maintained in an unsafe condition.
C It may obtain indemnity from both the equipment company and the homeowner
D It may not recover any damages it paid from any other party.
B It may obtain contribution from the equipment company because the equipment was negligently maintained in an unsafe condition.
A mother died, bequeathing all of her property to a trustee “to pay the income to my husband for life, and to distribute the principal to my son and daughter if they graduate from college. If they do not graduate from college, then the principal shall be distributed to charity.” Subsequently, the son and the daughter graduated from college.
Upon their graduation from college, how would the interests of the son and the daughter in the trust principal be classified?
A Tenants in common to a vested remainder.
B Joint tenants to a vested remainder.
C Tenants in common to a fee simple absolute.
D Tenants by the entirety to a fee simple absolute.
A Tenants in common to a vested remainder.
