MBE questions with answers/ explanations Flashcards
mixed subjects
A recent law school graduate was offered a job as an aide by a state legislator. The legislator told the graduate that before she could begin working, she had to take the following loyalty oath: “I swear to uphold our state and federal Constitutions; to show respect for the state and federal flags; and to oppose the overthrow of the government by violent, illegal, or unconstitutional means.” The graduate told the legislator that the oath is unconstitutional and refused to take the oath.
Is the graduate correct?
Yes, as to the promise to respect the flag.
A landowner and her neighbor owned adjoining tracts of land. No public road abutted the neighbor’s land, so the landowner granted the neighbor an express easement over the north 25 feet of the landowner’s land. However, the following month the county extended the public road to the neighbor’s land, and he ceased using the easement for ingress and egress.
Twenty years later, the neighbor conveyed the easement to his friend, who owned the land adjoining the other side of the landowner. The following year, the neighbor conveyed his land to the landowner. None of the parties has used the easement since the public road was extended. The jurisdiction has a 15-year statute of limitations for acquiring property interests by adverse possession.
At what point was the easement extinguished?
When the neighbor conveyed his land to the landowner.
The easement was extinguished when the neighbor conveyed his land to the landowner. An easement is extinguished when the easement is conveyed to the owner of the servient tenement. For an easement to exist, the ownership of the easement and the servient tenement must be in different persons. (By definition, an easement is the right to use the land of another for a special purpose.) If ownership of the two property interests comes together in one person, the easement is extinguished.
Congress passed legislation banning the hunting of snipe birds within the United States. The range of the snipe is quite limited; they are found primarily in only one state, although they migrate annually to several nearby states. Hunters from throughout the United States have traditionally traveled to the snipe’s home state during snipe hunting season, bringing considerable revenue into the state. A state statute allows hunting of snipe during a two-week period in November and charges a $50 license fee for state residents and a $250 fee for hunters from other states. The bag limit is one snipe bird per licensed hunter.
Is the state statute allowing snipe hunting valid?
No, because of the Supremacy Clause.
The state statute is invalid because of the Supremacy Clause. Under the Clause, if the federal government adopts legislation that it has the power to adopt, the federal legislation is supreme, and a conflicting state law is rendered invalid. The federal law here, banning the hunting of snipe, is within the federal government’s power under the Commerce Clause, which gives the government power to regulate anything that might affect interstate commerce.
A developer subdivided a 25-acre tract of land into 100 quarter-acre lots. On each lot she built a two-unit townhouse. The deeds to each of the purchasers contained a covenant that “the grantee, his heirs and assigns” would use the property only for single-family use. All deeds were promptly and properly recorded. Subsequently, the zoning laws were amended to allow multifamily use within the subdivision. Six months later, a social worker offered to purchase an original owner’s unit that was for sale. The social worker informed the owner that she planned to operate a halfway house out of the unit, an activity in conformity with the applicable zoning regulations. Therefore, the owner did not include the single-family restriction in the deed to the social worker.
If a neighbor, who purchased his lot from the developer, seeks to enjoin the operation of the halfway house, will he succeed?
Yes, because the social worker had notice of the restrictive covenant.
The neighbor will succeed in enjoining the operation of the halfway house because the social worker had notice of the restrictive covenant. A covenant runs with the land to a subsequent purchaser with notice of the covenant if it touches and concerns the land and is intended to run. Notice may be actual or constructive. Here, the social worker was on record notice of the covenant because the original owner’s deed was recorded. Restricting land to single-family use touches and concerns the land, and it is evident that the developer and the original owners, including the neighbor, intended it to run with the land by use of the language “grantee, his heirs and assigns.” The social worker thus will be bound even though her deed did not refer to the covenant.
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?
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 the election, because the suit is not moot and the residency requirement is unconstitutional.
The defendant was on trial for murdering his mother, who was found dead in her bathtub. At trial, the prosecutor called the nurse of the defendant’s aunt to testify to what the aunt told the nurse just before the aunt died of cancer. The nurse is prepared to testify that, shortly before she died, the aunt stated, “I know I don’t have much longer to live, so I must tell someone what my nephew said to me yesterday. He told me that he was very angry with his mother and that he wanted to kill her and make it look like an accident!”
Should this testimony be admitted?
No, because it is inadmissible hearsay.
A cattle-producing state adopted a statute requiring any food service business operating in the state to serve beef raised in the United States. A licensed hot dog vendor who worked at a football field within the state and who had been buying hot dogs made with foreign beef for the past several years estimated that switching to an all-beef hot dog made from United States beef would reduce his profits by 10%. An attorney hired by the vendor to challenge the statute discovered during research into the case that most of the footballs used at the football field at which the vendor worked were made of foreign leather.
Which of the following grounds is the vendor’s best argument against the constitutionality of the state statute?
The statute burdens foreign commerce.
A new federal law prohibited the use of various pesticides in areas with a certain population density near navigable waters. A city located in the southeastern United States was plagued by a sharp increase in disease-carrying mosquitoes. The city’s board of health recommended that all residential areas be sprayed with a pesticide proven to be highly effective against mosquitoes. Despite the fact that the federal law would prohibit use of that pesticide in these areas, the city council passed an ordinance adopting the board of health plan, relying on the opinions of several independent experts that the health benefits of reducing the mosquito population outweighed the risks of spraying. An environmentally minded citizen of the city brought an action in federal court challenging the ordinance.
Assuming that the citizen has standing, is the court likely to find the ordinance valid?
No, because it conflicts with a federal law that Congress had the power to make under the Commerce Clause.
Congress’s power to regulate commerce has been construed broadly, so that it may regulate any activity, local or interstate, that either in itself or in combination with other activities has a substantial economic effect on interstate commerce. If Congress has determined that the use of chemical pesticides and their runoff into waterways (which are channels of interstate commerce) will have an overall detrimental impact on the environment, this determination will be sufficient in this case to satisfy the standards established by the Supreme Court. Therefore, the law probably is a valid exercise of the commerce power. Any state or local action that conflicts with a valid act of Congress is invalid under the Supremacy Clause.
The state has the following homicide statutes:
Murder is the unlawful killing of a human being with malice aforethought. Such malice may be express or implied. It is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. It is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart. All murder that is perpetrated by willful, deliberate, or premeditated killing or committed in the perpetration of or attempt to perpetrate arson, rape, robbery, or burglary is murder of the first degree. All other kinds of murders are of the second degree.
The defendant and her associate entered a jewelry store to shoplift a diamond bracelet. Just as the defendant put the bracelet into her pocket, a sales clerk saw her and grabbed her by the wrist. The associate grabbed a knife from one of the silver displays and lunged at the sales clerk, but then a store guard shot and killed her. The defendant is charged with the first degree murder of her associate.
Which of the following is the defendant’s strongest argument?
The defendant cannot be convicted of murder because the associate’s death was not murder but justifiable homicide
The defendant’s strongest argument is that her associate’s death was justifiable homicide. Most courts today would not allow the defendant to be convicted on a felony murder theory when a co-felon is killed by a third party during the crime. Some courts base this result on the fact that the person who did the killing was justified in doing so.
An environmentalist divided her 25-acre property into 100 quarter-acre residential lots. At the time the environmentalist sold her lots, there was a recycling center about one mile from the western boundary of the development. She included in the deed of all 100 grantees the following provision:
“Grantee covenants for herself and her heirs and assigns that all aluminum cans, glass bottles, and grass clippings of Grantee and her heirs and assigns shall be recycled. This covenant runs with the land and shall remain in effect as long as there is a recycling center within five statute miles of the development.”
A buyer purchased a lot in the development. Her deed, which contained the recycling clause, was duly recorded. Two years later, the buyer decided to give the property to her niece as a gift. The niece’s deed to the property contained the recycling covenant, and she too recorded her deed. Shortly after the niece took possession of the house, the recycling center moved its location to a new site about four and a half miles from the development. When the niece put the house up for sale, she said nothing to prospective buyers about recycling.
The house was purchased by a veteran who had lost the use of his legs. The veteran’s deed did not contain the recycling clause, and he hired a local disposal service to carry away his garbage and a landscaper to maintain the yard. The landscaper bagged the grass clippings and they were removed by the disposal service, which put all the trash and clippings in a landfill. When the veteran’s neighbors informed him of his duty to recycle, he told them that he knew nothing of the covenant and that it would be difficult for a person in his physical condition to haul cans, bottles, and clippings to the recycling center. Unfazed, the neighbors filed suit to require the veteran to comply with the covenant or pay damages.
The veteran’s best defense is which of the following?
The covenant does not touch and concern the land.
he veteran’s best defense is that the covenant does not clearly “touch and concern” the land. While recycling may benefit the community at large, “touch and concern” involves the relationship between landowners at law. Recycling by the veteran does not directly benefit the other landowners in the use and enjoyment of their land.
Which of the following suits would not fall within the United States Supreme Court’s original jurisdiction under Article III, Section 2?
A suit by a state seeking to assert the interest of its citizens in retaining diplomatic relations with a foreign nation.
A suit by a state seeking to assert the interest of its citizens in retaining diplomatic relations with a foreign nation is not within the Supreme Court’s original jurisdiction. Under Article III, Section 2, the United States Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and in which a state is a party.
A cattle-producing state adopted a statute requiring any food service business operating in the state to serve beef raised in the United States. A licensed hot dog vendor who worked at a football field within the state and who had been buying hot dogs made with foreign beef for the past several years estimated that switching to an all-beef hot dog made from United States beef would reduce his profits by 10%. An attorney hired by the vendor to challenge the statute discovered during research into the case that most of the footballs used at the football field at which the vendor worked were made of foreign leather.
Which of the following grounds is the vendor’s best argument against the constitutionality of the state statute?
The statute burdens foreign commerce.
The best argument against the constitutionality of the state statute is that it burdens foreign commerce. For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress. Therefore, a state that adopts legislation requiring private vendors to favor United States products over foreign products, as the state did here, may be acting outside the scope of its powers.
While cross-examining a defendant on trial for robbery and assault with a deadly weapon, the prosecutor asks him whether he was convicted of fraud within the previous year.
Is this question proper?
Yes, because it tends to show that the defendant would lie.
A landlord leased office space to a business owner for five years, ending on November 1, reserving a yearly rent of $24,000, payable monthly. On October 1 of the fifth year, the business owner notified the landlord that he was preparing to move, but would greatly appreciate if the landlord could extend the lease for a month or two. On October 10, the landlord wrote to the business owner that she thought they could reach a satisfactory arrangement, but did not hear back from the business owner. The business owner did not vacate the office until November 20. On November 30, the landlord received a check from the business owner in the amount of $1,333 for “November’s rent” and a note that he had vacated the premises.
If the landlord brings an action against the business owner for additional rent, how will the court rule?
The business owner is bound to a year-to-year tenancy, because he did not vacate the premises until November 20.
The court will rule that the business owner is bound to a year-to-year tenancy because he is a hold-over tenant. When a tenant fails to vacate the premises after the termination of his right to possession, the landlord may: (i) treat the hold-over tenant as a trespasser and evict him; or (ii) bind the tenant to a new periodic tenancy. The terms and conditions of the expired tenancy apply to the new tenancy. At least in commercial leases, the new tenancy will be year-to-year if the original lease term was for one year or more. Here, the businessman was a tenant for years because his lease was for a five-year fixed period of time. A tenancy for years ends automatically on its termination date. Therefore, as of November 1, the business owner became a hold-over tenant and the landlord had a right to bind him to a new periodic tenancy. Because the original lease was for more than one year, the business owner may be held to a year-to-year tenancy, at the stipulated rent of $24,000 per year.
An antique lover spotted a beautiful Early American bedroom ensemble at her favorite antique store. The ensemble included a bed, a mirror, and two dressers. Over a period of several weeks, the shop owner and the antique lover negotiated over a price, but they were unable to come to an agreement.
On April 3, the shop owner and the antique lover signed a statement whereby the shop owner offered to sell to the antique lover an Early American bedroom ensemble, recorded as items 20465, 20466, 20467, and 20468 in the shop’s registry, if the parties agree upon a price on or before April 12.
On April 6, the shop owner sent a letter to the antique lover, telling her that she could have the bedroom ensemble for $22,000. Also on April 6, the antique lover sent a letter to the shop owner telling him that she was willing to pay him $22,000 for the bedroom ensemble. Both parties received their letters on April 7.
Without assuming any additional facts, which of the following statements is most correct as of April 8?
No contract exists between the shop owner and the antique lover, because of a lack of mutual assent.
THERE WAS NO acceptance
A union filed suit against a corporation, known for its antiunion management, asserting that its members were being discharged in retaliation for membership in the union rather than for any failure to perform their jobs properly. Under the pretrial discovery orders, a union employee was allowed to examine all of the records held in the corporation’s files concerning discharge of employees for a seven-year period prior to the instigation of suit by the union. The employee sorted through this large volume of material and discovered that persons who were union activists usually had “lack of corporate spirit” listed as their reason for discharge, while other fired workers tended to have more specific grounds for discharge listed, e.g., persistent lateness. The employee developed a chart showing grounds for dismissal of union members versus nonmembers based on the data in the files. At the trial, the union placed the employee on the stand. She testified in some detail regarding how she had conducted her research. The employee brought out the chart and the union’s lawyer asked that the chart be admitted into evidence. The corporation’s attorney objected.
How should the court rule on the admissibility of the chart?
Admissible, because copies of the original documents upon which the chart was based were available to the corporation prior to trial.
A defendant was charged with arson (a felony) of an antique shop. Only one corner of the shop was damaged before the fire was extinguished. Under a plea agreement, the defendant pled guilty and received a suspended sentence. Because the owner of the shop had not yet insured a recently acquired 400-year-old refectory table that was destroyed by the fire, he sued the defendant for damages. At trial, the owner offers the properly authenticated record of the defendant’s conviction for arson.
Should the record be admitted into evidence?
Yes, as proof that the defendant set the fire.
The owner of a corner lot allowed a hedge on his property to become overgrown, obstructing the view of motorists at that corner. Two motorists were driving inattentively and each ran a stop sign at the intersection bordering the lot. Their cars collided in the intersection and one of the motorists was injured. She sued the owner of the lot. The jury determined that the lot owner was 10% at fault and each of the motorists was 45% at fault.
Will the injured motorist recover damages from the lot owner?
Yes, because it was foreseeable that motorists could be injured if the hedge was not cut back.
A critically acclaimed movie that had received a number of awards opened in a small town. The film had portrayals of nudity and scenes involving sexuality, but its advertising was very tasteful and concentrated on its critical acclaim and its receipt of seven Academy Award nominations. Nevertheless, when the movie opened in the small town, there was a public outcry against it, including picketing. The town, which had been founded in the late nineteenth century by a fundamentalist religious group, remained very conservative and highly religious, and was the only community in the state where a consensus of the community would find the movie to be obscene. The town prosecutor went to the local court seeking an injunction to halt the showing of the movie. The theater owner refused to voluntarily stop showing the film and appeared in court to defend against the proposed injunction.
What is the owner’s best defense?
The film has proven artistic merit.
The theater owner’s best defense is that the film has proven artistic merit. The First Amendment generally protects the right of freedom of speech, and this freedom includes the right to show movies. Thus, to enjoin the showing of the movie here, the city will have to prove that the speech involved is unprotected speech. Obscenity is the category of unprotected speech most relevant here. The Court has defined obscenity as a depiction of sexual conduct that, taken as a whole, by the average person, using contemporary community standards: (i) appeals to the prurient interest in sex; (ii) portrays sex in a patently offensive way; and (iii) using a national, reasonable person standard, does not have serious literary, artistic, political, or scientific value. If the theater owner shows that the film has proven artistic merit, it cannot be held to be obscene because the third element of the above definition will have failed.
An airline passenger nearly killed in a crash is suing the airline for personal injuries. To prove the extent of his injuries, the passenger offers a videotape taken by a local news station immediately after the crash that shows serious burns covering much of the passenger’s face. The airline moves to exclude the videotape on grounds that its probative value is substantially outweighed by the danger of unfair prejudice.
In making his ruling, which of the following is NOT appropriate for the judge to consider?
The videotape will make it more likely that the passenger will win the suit.
A defendant is being prosecuted in federal court for illegally transporting persons across state lines for immoral purposes. The prosecutor alleges that her route was from New York to Tampa. The court takes judicial notice of the fact that it is impossible to get from New York to Tampa without crossing a state line.
What is the effect of the court’s action?
Responses
The prosecutor’s burden of producing evidence on this point is satisfied.
A defendant charged with murder admitted to the killing but claimed that he shot the victim in self-defense as she attacked him with a knife. At trial, the investigating officer testified about the scene of the crime and the condition of the victim at the time of death. The prosecutor showed the officer a photograph of the scene of the crime taken by the police photographer and asked the officer whether the photograph accurately depicted what he had observed at the scene. The officer testified that it did. The photograph showed the deceased lying in a pool of blood with both her hands cut off.
Should the court admit the photograph?
Yes, unless the court determines that its probative value is substantially outweighed by the danger of unfair prejudice.
In a property dispute, a granddaughter claims that her grandfather gave her a deed to his home just before he died. The grandfather’s son claims that the property is rightfully his by a previously executed will. At issue is the authenticity and content of the deed. The granddaughter begins to testify as to the content of the deed, but the son’s attorney objects.
Should the court sustain the objection?
No, if the judge is satisfied that the deed could not be found after a reasonable search.
A defendant is on trial for first degree murder and the prosecution wants to introduce a recorded telephone call by the victim to the police just before she was killed. Distraught, the victim failed to identify herself during the call. A witness is called to testify that the voice recorded was that of the victim’s.
Under which of the following circumstances would the trial court most likely sustain an appropriate objection by the defense counsel to admission of the tape recording into evidence?
The witness had heard the victim’s voice in several recorded telephone conversations between the victim and the victim’s father, and the victim’s father had told the witness that it was the victim with whom he was speaking.
At the defendant’s trial for a brutal assault, in which the victim identified the defendant as her assailant, the defense calls a witness who will testify that he has worked with the defendant for 20 years and that all of his business associates regard the defendant as an honest person.
If the prosecution objects to the witness’s testimony, for which party should the court rule?
The prosecution, because the testimony presents no evidence of any relevant character trait.
The defendant, a used car seller, is on trial for criminal fraud, charged with selling used cars with major mechanical problems while representing to buyers that the cars were mechanically sound. The defendant claims that she had no knowledge the cars were not fit for sale. At trial, the prosecution offers evidence to show that, eight months prior, the defendant was fired from a different used car lot for knowingly selling defective automobiles with major mechanical problems.
What is the best basis for admitting this evidence?
As evidence of the defendant’s criminal intent.
Evidence Workshop
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Question
A defendant on trial for robbery took the stand in his own defense and testified that the robber was his neighbor. The jury acquitted the defendant based on this testimony. The neighbor was then indicted and brought to trial for the robbery. At that trial the prosecution called the defendant from the first trial to the stand, expecting him to incriminate the neighbor. Surprisingly, the defendant testified: “My neighbor didn’t have anything to do with that robbery, but I know who did! I committed the robbery myself.” When asked about the testimony he gave at his own trial, the defendant insisted he didn’t remember anything about it.
Finding her case in shambles, the prosecutor calls a juror from the first trial to the stand as a witness, who is prepared to testify that the defendant said at the first trial that the neighbor committed the robbery.
On objection by the defense, should the court admit the juror’s testimony
Yes, to impeach the first defendant’s credibility as a witness, and as substantive evidence of the neighbor’s guilt.
A defendant is on trial for a murder that occurred during a robbery at the victim’s home. A witness helped the police artist compose an accurate depiction of the defendant. The witness was unavailable at the time of trial and the prosecutor offers the sketch into evidence.
Is the sketch admissible?
No, as hearsay not within any exception.
At a trial in which a pedestrian is suing a driver, a hospital record was admitted into evidence that included the following statement: “The pedestrian’s leg was run over by a car driven by a driver who blew through a red light while the pedestrian was crossing in a crosswalk.”
The driver’s attorney now wishes to admit the other portion of the hospital record, which says, “The pedestrian stepped off the curb without first looking both ways for traffic.”
How should the court rule?
Admit the statement on fairness grounds because the plaintiff has the other portion of the record.
The son of a famous author who has not been seen in two years brings an action against an insurance company to compel payment of the proceeds of the author’s insurance policy, for which the son is the sole beneficiary.
The son introduced evidence that, on the day the author disappeared, a plane left from the city where she lived and was lost while traveling over the ocean. The manifest of the airline was introduced showing that a passenger with a name similar to hers was aboard the airliner. The son wants to testify that his mother told him that she was going to be on that plane and, to preserve her privacy, was going to travel under the name that matches the name in the manifest.
Is the son’s testimony admissible?
Yes, because it is a relevant indication of state of mind.
A camper sued the manufacturer of thermal underwear, alleging that while he was attempting to stomp out a fire, the camper’s underwear caught fire and burned in a melting fashion up to his waist because it was defective, and that, a half hour later, he suffered a heart attack as a result of the burns he suffered.
A physician hearing the camper testify to the events that occurred is called by the camper and asked whether the camper’s heart attack could have resulted from the burns.
Is his opinion admissible?hjgfc
Yes, as a response to a hypothetical question.
A landowner validly conveyed a small office building to the Green Party “as long as they use it for operating quarters until the next presidential election.” After the next presidential election, which was in three years, the building would go to a private organization that monitors and prepares comprehensive listings of gas prices throughout the country. A year after the conveyance, the landowner died, validly devising all of her property to her son. Although this jurisdiction is a common law jurisdiction with respect to all real property considerations, the state’s probate laws provide that future interests or estates in real property may be passed by will or descent in the same manner as present or possessory interests. Last week, the Green Party and the gas monitoring organization joined together to sell the office building in fee simple absolute to a developer. The son filed suit to prevent the sale of the property to the developer.
In this action, who should prevail?
The son, because he did not sign the contract of sale.
Several members of a small terrorist group are on trial in federal court for conspiring to bomb a military installation. The prosecution would like to introduce the testimony of a military guard at one of the installation’s gates. The guard had been present when a bomb that was being planted by a member of the group had exploded prematurely. The guard will testify that she ran over to administer first aid to the member, who in great pain told her that his group was in the process of planting three other bombs in other areas of the military installation and was going to detonate them all at the same time to get publicity for their cause. The guard will also testify that the member disclosed the locations of the other bombs and the names of two other members of the group. The authorities were able to prevent the other bombings and arrest the other members of the group. The member died from his injuries.
What is the best basis for allowing the guard to testify as to the member’s statements?
As a statement against interest.
A minor league ballplayer hit a fly ball over the wall and out of the park during a game and struck a woman riding along the adjacent street on a bicycle. The woman sued the ballplayer for negligence. The woman alleged that the ballplayer had often hit balls out of the park and was aware that he had previously struck a car driving down the street.
Assuming the woman’s allegations are correct, is she likely to prevail?
No, because the ballplayer did not breach a duty of care towards the woman.
A plumber working for a company providing plumbing services to commercial and industrial establishments was required to be “on call” for emergency plumbing services 24 hours a day, and was required to drive his company van home each night so he would have all of his tools and equipment at hand for any calls. However, he was not permitted to use the company van for personal errands. On his way home one afternoon, he took a detour toward a supermarket a few blocks away to pick up some items for dinner. While entering the supermarket parking lot, he drove negligently and struck a pedestrian, seriously injuring him. The pedestrian filed suit against the plumber’s company in a jurisdiction that maintains traditional common law rules regarding contribution and indemnity, and the jury awarded him $100,000 in damages, which the company paid.
If the company sues the plumber to recoup its loss in the lawsuit, which party will prevail?
The company can recover 100% of the judgment as an indemnity, because the plumber was negligent, not the company.
An automotive engineer announced that he had developed a carburetor that will enable cars to achieve 100 miles per gallon of fuel, and that he will allow the carburetor to be inspected next month. Soon after, a former employer of the engineer brought an action to prohibit the engineer from displaying the carburetor, claiming that the engineer probably had stolen the carburetor’s design from the employer. The court granted the employer a temporary restraining order prohibiting the engineer from disclosing any mechanical details of his carburetor, and ordered a hearing to be held in one week to determine whether a preliminary injunction should be issued. Because each party would have to reveal the mechanical details of his designs at the hearing, the employer requested that the hearing be closed to the public and that the record be sealed to avoid revelation of his designs. The court granted the request. A reporter for a monthly automobile magazine heard about the case and wanted to attend the hearing. When he was told that the hearing would be closed, he filed an action to have it opened.
What is the reporter’s best argument for opening the hearing?
Closure is not necessary to preserve an overriding interest here.
A plaintiff sued a defendant for damages suffered when a load of bricks fell off the defendant’s truck directly in front of the plaintiff while she was driving on a highway. The plaintiff charged that the defendant was negligent in supplying his truck with a defective load chain clamp, which helped tie the load to the bed of the truck, and in failing to secure the load properly on the truck. The plaintiff calls a witness who testifies that he was formerly employed as a truck driver and is an acquaintance of the defendant. The witness further testifies that immediately prior to the accident he had coffee with the defendant at a cafe, and mentioned to the defendant that the tie chains holding the load of bricks looked kind of loose.
Assuming proper objection by the defendant’s attorney, how should the court rule on the admissibility of such testimony?
Admissible nonhearsay.
A woman was struck by a brick with her name scrawled on it that was thrown through her bedroom window. The victim believes that her ex-boyfriend, who is a gang member, threw the brick because she has become active in anti-gang groups, but she did not actually see him throw it. The ex-boyfriend is arrested and put on trial for battery.
Assuming that all notice requirements have been met, which of the following items of the victim’s proposed testimony is LEAST likely to be admitted?
On another occasion, the victim had seen her ex-boyfriend throw a rock through the window of a rival street gang member.
A homeowner, a citizen of State A, hired an electrician, a citizen of State B, to fix the wiring in her basement and hired a gas worker, also a citizen of State B, to install a new gas stove in her kitchen. Unfortunately, the home caught fire and burned down while they were both working on their separate jobs. The homeowner sued the gas worker for negligence in federal court in State A, seeking $100,000. The homeowner promptly served the gas worker, and the gas worker timely filed an answer with the court. One month after filing the answer, the gas worker moved to file and serve a third-party complaint against the electrician, alleging that the electrician was the sole cause of the accident.
Which of the following arguments is most likely to achieve the electrician’s goal of dismissal of the third-party complaint?
The gas worker’s claim against the electrician is not a proper third-party claim.
The electrician’s best argument is that the gas worker’s claim against the electrician is not a proper third-party claim. Under Rule 14, a defendant may assert a third-party claim against “a nonparty who is or may be liable to it for all or part of the claim against it.” In other words, a third-party claim must be a derivative claim; the third-party plaintiff must be seeking indemnification or contribution from the third-party defendant. Here, the gas worker’s claim is not that the electrician must indemnify him or that the electrician is a joint tortfeasor who may be jointly liable under principles of contribution. Rather, the gas worker is alleging that he (the gas worker) is not liable and that the electrician is. Because the claim is not derivative, it is not properly asserted as a third-party claim under Rule 14.
A landowner included in his will a provision giving “all of my property, both real and personal, wherever situated, to my widow for life, and after her death to any of our children who may survive her.”
What is the gift to the children?
A contingent remainder.
