MBE REVIEW

Question 1

Valid Miranda Waiver

Answer 1

Do you understand your Miranda rights, and are you willing to give up those rights and talk to us? “yes” =

Question 2

Attractive Nuisance Doctrine

Answer 2

Owner/Occupier of Land will be liable for their failure to exercise reasonable care to protect trespassing child from physical harm caused by articificial conditions on land if:

1. the condition is in a place where children are likely to trespass;
2. the risk is one the owner or occupier knows or should know involves an unreasonable risk of death/harm,
3. the risk is one that children would not realize because of their youth and
4. the owner’s utility in maintaining the dangerous condition and the burden of eliminating the danger are slight compared to the risk to the children

Question 3

FRE 301: The Rule on Presumptions

Answer 3

Party against whom a presumption is directed has the burden of producing evidence to rebut. If presumption is properly rebutted, the presumption wll be taken out of the case and is up to the jury to determine. (i.e. a directed verdict for either party will not be successful)

Question 4

Defense to Property

Answer 4

One is privileged to use reasonable force to prevent or end a trespasser’s intrusion upon his land or to protect his property. Ex. Cannot use seriously bodily harm (punch in face to child) unless owner is in danger of serious bodily harm.

Question 5

Elimination of 5th Amendment Privilege against Self-Incrimination by:

Grant of Immunity

Answer 5

A Witness may be compelled to answer questions if granted immunity from prosecution.

“Use & Derivative Use” Immunity Sufficient (Kastigar v. US) - guarantees that the testimony obtained and evidence located by means of the testimony will not be used against the witness.

Note: “Transaction Immunity” is broader and guarantees immunity from prosecution for any crimes related to the transaction about with the witness testifies, (witness may still be prosecuted if P shows independent source)

Testimony obtained by a promise of immunity is, by definition, coerced and therefore involtunary. Cannot be used to impeachment of the D’s testimony at trial unless trial for perjury/false statements.

Question 6

Practical Relation between:

[Renewed] Judgment as a Matter of Law & Motion for a New Trial

Answer 6

A motion for JMOL (renewed) may be combined with a motion for new trial under FRCP 50(b). If the judge grants the judgment as a matter of law motion, the judge must also rule conditionally on the new trial motion.

Later, if the JMOL is reverse on appeal, the new trial will then automatically occur unless the appeals court specifies otherwise.

Question 7

Civ Pro

Definition & Application of:

Provisional Remedies - ATTACHMENT

Answer 7

Definition: A process by which another’s property is seized in accordance with a writ or judicial order for the purpose of secuing a judgment yet to be entered

Applied: Fed court will authorize this any time following commencement of the action in order to secure satisfaction of a potential judgment (i.e. you are concerned that your defnedant may not have assets to satisfy the eventual recovery you expect)

Question 8

“Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.”

Answer 8

Notice Statute

Subsequent purchaser protected as long as he had no actual or constructive notice at the time of the conveyance (or mortgage)

Question 9

“No conveyance or mortgage of real property shall be valid against a subsequent purchaser for value and without notice whose conveyance is first recorded.

Answer 9

Race-Notice Statute

Bona fide purchaser is protected only if he records before the prior transferee or mortgagee records.

Question 10

Is an “independent municipal water-suppy district” that was incorporated under the applicable laws of a particular state, “Government Action”?

Answer 10

Yes.

Question 11

Objections to Jury Instructions - Requirements

FRCP 51

Answer 11

Judge can reconsider and correct his mistake via jury instructions only if objection is…

1. Timely

• Objection is timely if: objected to during court’s allowance of giving parties the opporutnity to object OR if that does not happen, the party must object promptly after learning that the instruction/request will be, or has been given or refused.
  
  • Court must inform the parties of its proposed instructions and actions on requests before instructing the jury and before final jury argument - thereby giving parties an opportunity to object on the record and out of the jury’s hearing

2. Disctinctly states the matter objected to on the record and the grounds for the objection.

• Example: Claiming that a jury instruction “would be prejudicial” is not distinct and does not identify the precise grounds for objection
• Request for Instructions to the Jury:*
• Before or at the close of evidence
• After close of evidence, only upon a showing of unanticipated grounds via filing a court request

Question 12

Definition: Harmless Error

Answer 12

An error made by the court but which does not affect any party’s substantial rights

Therefore, no grounds to grant new trial, set aside verdict, vacate, modify or otherwise disturb a judgment order.

Question 13

Definition: Plain Error

Answer 13

Error found by an appellate court that affects the substantial rights of the parties -

Therefore, can be considered in instructions even if claim was not preserved by proper objection

Question 14

Is the following statute constitutional?

Statute that requires autopsies for all non-obvious deaths that impedes on a religion that believes in no autopsy when their son dies

Answer 14

YES; constitutional.

Question 15

Evidence

When is Re-Direct Permitted?

Answer 15

Re-direct exam permitted only if there are significant new matters raised on Cross-Examination

i.e. NOT collateral matters

Question 16

Speech & Debate Clause

Answer 16

shields members of congress from civil or criminal suits relating to their legislative actions & grand jury investigations relating to those actions.

Immunity Extends to aids (assistants) who engage in acts that would be immune if performed by a legislator. (Gravel v. US)

Question 17

Strict Liability Crimes are regulatory in nature and intended to prevent public harm

Very few strict liability crimes qualify as felonies for purposes of the MBE:

List the 1 that qualifies as a Felony and

1 that qualifies as a Misdemeanor

Answer 17

Strict Liability = Statutory Rape = Felony

Strict Liability = Sale of unadulterated milk = Misdemeanor

Statute making it felony to fail to register firearm = Not SL

Question 18

Con Law

Validity of an action by an reapportionment board will be valid when it is not based on:

Answer 18

Race - which would trigger SS and Govt would likely lose OR

In drawing current district lines, the board complied with state const’l rew. that the legislative disr. be compact and follow political subdivision boundaries to the max extent

Question 19

Art II Section 3 - decision to prosecute ambassador is reserved solely to…

Answer 19

Executive Branch

Thus, the Attorney General can decide whether to prosecute an ambassador

Question 20

Public Forum Test

Answer 20

Govt can restrict speech in public forums with reasonable time, place, and manner regulations

Regulation must: 1) be content-neutral (subj matter & viewpoint, 2) be narrowly tailored to serve an important govt interest; and 3) leave open alternative avenues of expression

Question 21

Insantity Defense - Are state required to recognize?

Answer 21

No, but

If a state does recognize an insanity defense, it is permissible to shift the burden to the defnedant to prove it as an affirmative defense

Question 22

Restriction of Expression in Public Forums

Answer 22

Same Test as Public Forum Test

Law upheld if it is 1) content neutral, 2) narrowly tailored to serve an important government interest, and 3) leaves open alternative avenues of expression

Question 23

14 Amendment Enforcemnet Clause

Answer 23

Allows congress to enact remedial legislation to combat age disc. incluing forced retiredment based age.

This authority allows Congress to subject an unconsenting state to private suits in federal court for damages related to such discrimination

Question 24

Example of potential state encourage of discrimination enough to held a federal question

Answer 24

Bar Association & Cosmo Club

Question 25

Under Art. 1 Section 7 - a congressional veto regarding a fed agency’s actions requires what 2 things:

Answer 25

Bicameralism & Presentment:

a majority vote by both houses of Congress AND presentment to President to exercise his veto power

• Congress can veto agency issuance without overstepping*
• (it is exercising legislative power when ti does this not judicial function)*

Question 26

Congress has sole power to regulate what?

Answer 26

Foreign Commerce

Question 27

Whether the president can/cannot recognize a certain country and
therefore tell an ambassador to leave the country

Answer 27

Nonjusticiable Political Question

Question 28

Intent for Assault & Battery

Answer 28

If there is evidence of intent to assault, then that intent transfers to battery.

Question 29

Deed Poll

Answer 29

Def: A deed that is signed only by the grantor.

If the grantee accepts a deed poll, he accepts all conditions on it (i.e. asummption of mortgage)

Question 30

Assumption Agreement v. Subject to Agreement

Answer 30

Assumption: Grantee promises to pay the mortgage loan. Thus, grantee becomes primarily liable to the lender and original mortgagor becomes secondarily liable as a surety. But mortgagee can sue either the grantee or original mortgagor.

Subject: Original mortgagor is liable.

Question 31

3rd Party Beneficiary to a Contract

Answer 31

Intended (not incidental) beneficiaries have contract rights - i.e. the right to enforce the K or share in the proceeds. Then, the promisor is allowed the same defenses against the intended beneficiary as he the promisor would have with the promisee.

Intended v. Incidental depends on the intent of the parties.

Question 32

Condemnation of Land in Tenant-Landlord relationship

Answer 32

The extent of the effect of the taking on the tenant’s rights depends on whether there was a complete or partial taking.

1. Complete taking (govt takes all prop that tenant was leasing) =
   
   • ​​lease is automatically terminated and tenant has no further obligations to make payments
2. Partial taking (some but not all land being leased was taken) =
   
   • tenant is still responsible for making payments, but only to an amount proportionare to the land that was not taking.
   • Tenant will also share in the monies paid by the govt to the landlord ofr the taking to the extent of the tenant’s rent liabilit in portion of land that was taking

Question 33

Character Evidence in Civil Cases

Answer 33

FRE 404: Proof of Character in order to show conduct consistent with that character is inadmissible in civil cases!!!

Admissible only if character is at issue in the case (negligent hiring/entrustment, defation child custody)

Question 34

Evidence Privileges Choice of Law Rules

Answer 34

• Whether a privilege applies in a federal court depends on federal common law.
  
  • When a case is federal question, court will apply federal common law.
  • When a case is on diversity, court will apply state substantive law.

1. Physician-Patient Privilege: Recognized by most states, but not recognized federally
2. Patient-Psychotherapist: Recognized Federally

Question 35

Attorney-Client Privilege Exception

Answer 35

There is no privilege if the services of the attorney were sought or obtained as an aid in the planning or actual commission of something that the client knew, or should have known, was a crime or fraud.

It doesn’t matter whether or not the attorney was aware of the client’s illegal purpose behind seeking his advice.

Question 36

FRCP 15(b)(2): Issues tried by consent

Answer 36

Issues tried by consent are treated as they were raised in the pleadings.

As such, a party may move to amend the pleadings to conform the pleadings to the evidence and raise a previously unpleaded issue.

Example: Defendant can assert a jury to try an issue that is akin to a “counter claim” if the plaintiff expressly or impliedly consents during trial. Defendant’s failure to amend pleadings does not affect the result of the trial on that issue.

Question 37

Complete Defense to Defamation (regardless of Private or Public figure)

Answer 37

Truth

• Regardless if the state was believed to be false when it was made

Question 38

Death Escrow

Answer 38

Grantor may give a deed to an escrow agent to deliver to the grantee on the condition the grantor dies. It is effective as long as:

1. The only condition is the grantor’s death; and
2. The grantor does not retain the legal right to take the deed back out of escrow. (he can get it back, but does not have a right to get it back)
   
   • must place deed beyond control, reserving no power over it

Question 39

Defamation - Qualified Privilege

Answer 39

A qualified privilege allows a speaker to say something defamatory if the recipient has an interest in the information

Examples: A former employer makes statements to prospective employee (includes agency settings)

Privilege is lost if the speaker has knowledge that the statement is untrue or a reckless disregard for its truth or falsity.

Question 40

To A for life.

O’s will: To B for life, then to C in fee simple.

O dies during A’s life.

What result?

Answer 40

A holds life estate even upon O’s death.
Upon A’s death, B has life estate.Then to C and heirs permanently.

I.e. death of owner does not affect life state - land will rever back to owner’s estate if owner is dead.

Question 41

Valid Conveyance of Land Requires what 2 things

Answer 41

1. Execution of deed: satisfied as long as the deed is signed by the party to be charged (seller usually)
2. Delivery of deed: established by a proven present intent to pass title
   
   1. need not be a physical transfer
   2. Just some action intended to make the deed effective presently
   3. Exception: Intent to have a transfer be effective at grantor’s death is valid in a deed only if the deed expressly reserves a life estate.

Question 42

Federal govt takes action that would result in violating the Equal Protection Clause of the 14th Amendment - What is best constitutional grounds to challenge?

Answer 42

Violation of the Due Process Clause of the Fifth Amendment

Example: US govt demonstrated that terrorist attacks involving commercial airliners were perpetrated exclusive by individuals of one particular race. So, congress enacted a statute imposing stringent new airpor and airlne security measures only on individuals of that race seeking to board airplanes (best challenge is not commerce but equal protection (applicable to fed govt through due process of 5th)

Question 43

Former Testimony

Answer 43

Testimony of now-unavailable witness (i.e. Former Testimony) is admissible as a Hearsay Exception if:

1. Testimony was given under oath (trial, hearing, deposition) in the same or different case AND
2. The party or predecessor in interest (in civil case) against whom the testimony is now being offered (party in the former transaction) had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross, or redirect.

• Similar Motive = same subject matter, not same cause of action
• Grand jury = no opportunity to cross, so cannot be Grand Jury Testimony
  
  • Compare to: Prior inconsistent statement given under oath - admissible even if only at Grand Jury proceeding because no cross requirement. Instead, Witness is available for cross in this scenario.

Question 44

Bona Fide Purchaser

Answer 44

Definition: purchaser who purchases in good faith;
without noticeof any defect in title and for avaluable consideration

a BFP is NOT a donee, heir because no consideration.

Question 45

Easement Appurtenant

Answer 45

One that benefits the dominant estate (it on the servient tenement) and “runs with the land” so tranfers automatically when the dominant estate is transferred.

Application: allows property owners to access land that is only accessible through a neighbor’s land,

Requires 2 pieces of property (dominant and a servient one) - leasing is irrelevant

Question 46

Prima Facie case for

Trespass to Land

Answer 46

1. Act of physical invasion of P’s real property by the Defendant
2. Intent by the D to bring about the physical invasion
3. Causation

Mistake as to the lawfulness of the entry is no defense as long as the D intended the entry (no need for intent to trespass)

Question 47

FRCP 49(b)(4): Inconsistent Jury Verdict - What result?

Answer 47

49(b): Judge may require a general verdict supported by interrogatories as to specific findings of fact. Erroneous verdicts may be set aside if the court believes the jury dd not follow its instructions property.

Under 49(b)(4): When the answers are inconsistent with each other and one or more is also inconsistent with the general verdict, judgment must not be entered; instead, the court must

1. direct the jury to further consider it answers and verdict, or
2. must order a new trial

Question 48

Spoken Defamation

Answer 48

Slander

When defamation is slander, P must also prove special (pecuniary) damages unless the verbal defamation falls within 1 of 4 exceptions (considered slander per se): 1) criminal activity, 2) occupational conduct, 3) sexual misconduct, or 4) loathsome disease.

Example: P tried to return some items from a store. Store said no. continued to bill. Sent bill collector who announced to neighborhood that P was bad person. P must prove special damages to prevail.

Question 49

Motion for Remittur

Answer 49

Must always be paired with the alterntive option for a motion for a new trial

Rmr: in diversity cases, to use the state law standard (shocks the concious v. excessive) PLUS motion for new trial - even if this part is not included in the state’s statute

Question 50

Conversion Definition & Damages

Answer 50

Definition: D intentionally commits an act depriving the P of possession of her chattel or interferes with the P’s chattel in a manner so serious as to deprive the P use of the chattle

Damages = Full Value at time of Conversion.- apply this diligently

Question 51

Joint Tenancy Characteristics

Answer 51

• Right of Survivorship
• Termination by Partition or Serverance
  
  • Severance: one JT makes an inter vivos conveyance of their entire interest in the property,JT is destroyed
  • Partition - in kind (split up) or by sale
• creation by 4 unities - time, title, possession, interests

Question 52

Suretyship does not need to satsify SOF when?

Answer 52

• Promise made to answer for the debt of another - must satisfy SOF unless:
  
  • Where surety prmise was made to the principal (seller) and not the obligee (creditor)
• Ex. buyer and seller orally agreed that buy would pay 46K for Blackacre and that 25K of that purchase price would be paid to creditor to satisfy seller’s debt. No facts suggest buyer made any promise directly to seller. Creditor can sue under theory of intended beneficiary and Buyer cannot raise SoF defense.

Question 54

Attorney Work-Product Doctrine

Absolute v. Qualified Immunity

Answer 54

• Not only protects the attorney’s work product (which recieves absolute immunity) but
• Expands to all other documents prepared for litigation by other partys (which receives qualified immunity)
  
  • ​Qualified Immunity can be overcome by showing a substantial need for the materials and that their equivalent is not available through other means
    
    • Can only be compelled to produce by Court Order
• Example: Baker v. Roofer alleging Roofer caused fire - Baker’s insurance agency employees photos/memo documenting the fire will be protected as a Qualified Work Product - so can be compelled if properly overcome

Question 56

Requirement by Authentication or Identification as a Condition to admissibility

is satisfied how?

Answer 56

• By evidence to support a finding that the matter in question is what the proponent claims
• Real Evidence is commonly authenticated by recognition testimony or by establishing a chain of custody

Example: D drops plastic bag and runs away from Police, Police return minutes later to same spot and retreive the bag - This is sufficient evidence for a finding that the bag was the one the 🜂 dropped

Question 57

Reasonable Use Doctrine

Answer 57

• Under the reasonable use doctrine (followed by many eastern states), a landowner is limited to reasonable use of the underground water for beneficial purposes on the overlying land.
  
  • “Reasonable” use is just about any use on the land that is not merely malicious or a waste of water.
• Example: use of water for gardening, filling a pool, and for the needs of tenants will constitute a reasonable use for beneficial purposes on the family’s overlying land

Question 58

Clergy-Penitent Privilege

(similar to Attorney-Client)

Answer 58

• Communication must be made to member of clergy acting in their capacity as a spiritual advosor (Confessional/Counseling Session)
• Example: Communication made during church fundraise is a social function and therefore falls outside the scope of privilege and will not be protected

Question 59

When is Evidence of Defendant’s Prior Bad Acts

FRE 404(b)

Answer 59

• Evidence of Defendant’s prior bad acts (crimes, wrong) not admissible to prove character in order to show that on a particular occasion the person acted in accordance with the charactr. It IS admissible to prove:
  
  • Motive
  • Intent
  • Absence of Mistake/Accident
  • Mistake
  • Identity
  • • Knowledge
  • Opportunity
  • Preparation
  • Plan
  • Scheme
• For Criminal Case, Prosecutor must officr notice of any such evidence (along with the reason)

Question 60

Joint Tenants - What happens when JTs die at the same time?

Answer 60

• General Rule is the Right of Survivorship. But if both die at the same time:
• Joint tenants who have died simultaneously are deemed to have held the property as tenants in common. This means that there is no right of survivorship between the joint tenants. Each tenant’s interest in the property passes according to their will/intestate.

Question 61

Liquidated Damages Clause

Answer 61

• Found in a Real Estate K
• It is a reasonable and agreed upon amount that would be awarded to the seller, should the buyer breach the contract
• Amount: Usually does not exceed 3% of the purchase price but can be up to 10%;
• To be enforceable, must be in good faith attempt by both parties to approximate fair amount; if liquidated clause exists, it will be controlling (as long as not a penalty or unconscionable)

Example: “K stated that the owner had the right at his option to retain the deposit as liquidated damages in the event of the buyer’s default” = enforceable liquidated damages clause

Question 62

Non-Hearsay Prior Consistent Statements

Answer 62

• (regardless of it they are made under oath) - not hearsay when offered to rebut an express or implied charge of lying/exaggerating
• only admissible if it was made before the alleged motive to lie or exaggerate came into being

Example:

• Direct Examination - prior consistent not admissible because 🜂 is yet to have been accused of lying or exaggerating
• If it is an out of court statement made when being arrested, motive to lie already arisen so cannot come in as PIS

Question 63

Increase Use of an Easement

Answer 63

• Will not terminate the easement.
• The correct remedy is damages or an injunction.

Question 64

How does one “accept” a unilateral K?

Answer 64

• Definition of Unilateral K: one party promises to do something and the other party is free to act or not act as he wishes
• Acceptance is effective when offeree is given notice of acceptance (unless offeree has reason to know that the offerror will learn without notice)

Example: Manufacture offer to wholesaler to give credit to Retailer and manufacturer will make good any loss (up to X amt), is unilateral because manufacturer did not seek return commitment. Wholesaler should give notice of acceptance of extension of credit to retailer in order to accept.

Question 65

Contract Defenses

(MMIISDUM)

Answer 65

1. Misunderstanding
   
   1. includes Vagueness
   2. Example: 5 acres of a 100 acre farm = not indentified with reasonable specificity and therefore vague & unenforceable
2. Mistake
3. Illegality
4. Incapacity
5. Statute of Frauds
6. Duress
7. Unconscionability
8. Misrepresentation/Fraud

Question 66

Mutual Mistake

Answer 66

• Defense to K formation, renders K void
• Elements:
  
  • 1) the mistake concerns the basic assumption on which the K was made
  • 2) the mistake has a material effect on the agreed exchange of performances and
  • 3) the adversely affected party must not have assumed the risk
    
    • A disadvanted party will not be able to avoid the K if the risk of that mistake was and still is allocated to him (can be re-allocated by K)
• Example: Risk is assumed and therefore K cannot be avoided when: builder engaged in a business of excavation and had opportunity to investigate the condition on ground

Question 67

UCC Perfect Tender Rule

Answer 67

• If not perfectly tendered, buyer can reject, and if defective delivery not timely cured, buyer can pursue remedies for breach of K
  
  • Buyer is only obligated to allow seller an opportunity to cure if the performance is not yet due or if the seller reasonably thought that the delivery would be conforming
• Example: Seller promises to deliver 100 bushels of wheat on Aug 1, and deliers only 95 on Aug 21. Buyer need not give reasonable time to cure (b/c there is no time left for performance), and instead can reject and bring cause of action for breach

Question 68

When are gifts revocable/irrevocable?

Answer 68

• Only Promises to make future gifts are revocable;
• Complete gifts are not revocable
  
  • Example: A gift will be “completed” upon delivery of a passbook (representation of the money in the account) and regardless of a silence in reply, is therefore not revocable.

Question 69

Accord and Satisfaction

Answer 69

• Partial Payment of an original debt will satisfy as an accord and satisfaction if there is a bona fide dispute about the validity of the claim
  
  • One person at least must honestly believe that they don’t owe anything

Example: Son dies. Creditor writes to father that son owes bill of 200 and will file against estate. Father says if you don’t sue against estate I will pay. Creditor believe he is owed, he accepts 150. If father believes he owes the creditor, accord and satisfaction do not apply, so he will be liable for the $50 still to creditor.

Question 70

Temporary Restraining Order

v.

Preliminary Injunction

Answer 70

• Temporary Restraining Order: Granted by a court when it is necessary to prevent irreparable injury to a party and the injury will result before a preliminary injunction can be made
  
  • Can be granted without notice if:
    
    • States specific facts that she will suffer irreparable injury w/o grant
    • Certifies in writing efforts mae to notify or why notice is not required; and
    • Provides security to pay for damages incurred by non-moving party if TRO ends up being wrongful
  • Not immediately appealable
  • Lasts for not more than 14 days.
• Preliminary Injunction:
  
  • Cannot be granted without notice (and opportunity to be heard)
  • Immediately appealable

Question 71

FRCP 59: Motion for New Trial

Answer 71

• On Motion, the Court is authorized to grant a new trial on all or some issues:
  
  • After a jury trial for any reason including: a significant error of law, verdict going against the weight of evidence, irregularity in the court proceeding, jury misconduct, newly discovered material evidence, and improper damages
  • Example: A juror’s misunderstanding of the jury instructions is grounds for requesting a new trial.
• Court can SUA SPONTE, on its own, grant motion for new trial for any of the reasons above (without motion)
• Timing: 28 days after entry of judgment (includes Motion to Alter or Amend judgment)

Question 72

Issue Preclusion (Collateral Estoppel)

Elements + Minority/Majority View

Answer 72

• can be asserted defensively if:
  
  • (i) the prior action ended in a final judgment;
  • (ii) the issue has been actually litigated and determined;
  • (iii) the issue was essential to the judgment; AND
• Asserted by:
  
  • Minority, Mutuality View: Only parties to the prior litigation
  • Majority View: Those who were not parties to prior litigation
    
    • in this instance, can also be used offensively.

Example: Ped sues driver for negligence and wins because driver is negligent. Ped sues owner of truck on theory of vicarious liability and negligence. Owner will not win on issue preclusion if in a minority jx because he was not a party in the prior action.

Question 74

Claim Preclusion (Res Judicata)

Answer 74

• Affirmative Defense
• Once a final judgment on the merits is rendered on a specific cause of action, claimant is barred from retrying the same cause of action in a later suit.
• After final judgment on a COA, a claimant will be precluded from re-trying the COA if:
  
  1. Second case was brought by the same party against the same party
  2. Same COA = arising out of the same T/O that is the subject matter of a claim
  3. Dismissed with prejudice unless based on jurisdiction, venue or indispensable parties

Question 75

CAFA Class Action Requirements

Answer 75

• Relaxes federal jurisdiction Requirements for Class Actions
  
  • 5 mil, 100 class members
• SMJ established as long as any class member (not just a rep) is of diverse citizenship with any Defendant
• Any Defendant can remove to fed court without the consent of all Defendants
  
  • No in-state defendant limitation on removal.

Question 76

Standard for 12(b)(6) Motion to Dismiss for…

Answer 76

• Failure to state a claim upon which relief can be granted
• 12b6 motion is successful if it demonstrates that even if every fact asserted in the complaint is taken as true no recovery is plausible under any legal theory

Example: Writer brings suit & alleges: w/o giving writer credit, director intentionally copied my unpublished screen play. –> on these grounds, a 12b6 motion will fail; court will allow 𝛑 to use discovery to find out more

Question 77

FRCP 38: Right to Jury Trial

Answer 77

• Allows a party to demand a jury trial on any issue triable of right by a jury by:
  
  • serving opposing parties with proper written demand within 14 days after service of the last pleading
• If no jury demand made court may:
  
  • on motion, order a jury trial on any issue for which a jury might have been demanded
  • authorize use of advisory jury of “an action not triable of right by a jury”
    
    • not binding
  • If an action is not an issue for which a jury might have been demanded, court needs both parties consent

Question 78

Appellate Court Discretion when:

Reviewing Discretionary Ruling (Motion for new trial on evidence or discovery) by Trial Court

Answer 78

• Ruling will not be overturnd unless it is plainly wrong or without an appropriate basis
• Example: The standard a federal trial judge uses for determining whether to grant a new trial in jury cases is whether the verdict is against the clear weight of evidence. Therefore the appellate court can only reverse if trial court is plainly wrong.*
• X motions for new tiral; denied; X appealed; answer: appellate court can affirm denial if it believes the verdict was not against the clear weight of the evidence

Question 79

Involuntary Dismissals by the Court bar subsequent suits. What will rise to involuntary dismissals and what are th 4 exceptions?

What are the exceptions to this? (4)

Answer 79

Court will order Involuntary Dismissal if

• 1) failure of the plaintiff to prosecute,
• 2) failure of plaintiff to comply with court order or
• 3) failure of 𝛑 to show by close of evidnece a right to relief = adjudication on the merits

If dismissed these ways, no bar to subsequent suit:

• 1) lack of jx,
• 2) improper venue,
• 3) failure to join a party and
• 4) anything else the court deems via order

Example - Failure of plaintiff to prosecute: A brings claim, after filing, nothing happens and ourt dismisses claim. Effect = dismissal will operate as an adjudication on the merits that precludes A from re asserting the same claim in a newly filed action

Question 80

FRCP 52: Non-Jury Trial

Requires the Court to do what?

Answer 80

• trial court must “find the facts specially and state its conclusions of law seperately”.
  
  • i.e. judge must set forth the facts as she finds them with some particularity & in a separate section, state the law she believes disposes of the case
  • ​This obligation only exists for non-jury trials

Example: A grant or denial of a motion for summary judgment or 12b6 motion to dismiss for failure to state a claim does NOT need to be accompanied by findings of fact and conclusions of law

Question 81

FRCP 8(a): General Pleading Rules

What must a complaint include?

Answer 81

a complaint must contain:

1. a short and plain statement of the court’s jx,
2. sufficient factual allegations to allow a dist. ct to find that the claim is plausible and
3. identification of the relief sought

Exception: Certain special matters must be pleaded with particularity.

• Allegations of Fraud or Mistake

Question 82

False Pretenses

Question 83

False Pretenses

Answer 83

1. Obtaining Title (ownership rather than mere possession)
2. by False misrepresentations (must be intentional false statements)
3. of past or existing fact (misrepresentation of a future event does not qualify)
4. with the intent to defraud (the victim must be decieved or must act in reliance of the defendant’s false statement in passing)

Specific Intent Crime

Question 84

What 2 things do you need in order to join multiple defendants?

Answer 84

1. Some claim against each defendant must relate to or arise out of the same series of occurrences or transactions; and
2. There must be a question of fact or law common to all parties.

If misjoinder, motion to sever

Question 85

Conflict of laws as to real property in a diversity suit -

which state’s law governs?

Answer 85

• Choice of Law rules will not be determined by where the suit was filed but where the property is located

Question 86

Letter on Oct 8 from Seller to Buyer: “i need a motorcycle and will buy yours for $1200 upon your bringing to my home address on or before November 12”

Buyer’s response via mail the following day: “i accept your offer and promise to deliver the bike as you specified”.

What effect of Buyers response?

Answer 86

• Mailing of the letter by Buyer did not, of itself, prevent a subsequent, effective revocation by the Seller of his offer
• Letter was not an appropriate method of acceptance because seller’s letter offer requested performance; thus mailox rule would not apply to make the acceptance effective upon dispatch and Seller’s offer remains freely revocable.
• Unilateral Contract

Question 87

A state’s imposition of residency or citizenship requirements on non-residents imposes what?

Answer 87

• The Privileges and Immunities Clause of Article IV
• States cannot impose residency or citizenship requirements on non-residents without demonstrating a substantial interest justifying the classification.

Question 88

Purposeful availment will not be found when…

&

It will be found when…

Answer 88

• A manufacturer’s knowledge that its machines wee being advertised, sold, an delivered to a company in State A by an independent State B distributor (not in the manufacturer’s control) is not enough to legitimate the assert of jurisdiction.
  
  • i.e. Just because a manufacturer targets a country, he does not target each state within that country
• To have purposefully availed: Manufacturer must have advertised, sent goods, or in any way targeted State A

Question 89

A contracts in writing with B to renovate kitchen for $25K, “subject to homeowner’s complete personal satisfaction”. A truthfully believes she did not like the finish ont he cabinets and thus not satsified. Pays B only $20K. B sues A for $5K.

What result?

Answer 89

• “Subject to…” = condition precedent
• A’s promise to pay is subject to her complete personal satisfaction with B’s work.
  
  • As long as homeowner was truthful in her dissatisfaction with B’s work, this will not amount to a breach of the convenant of good faith and fair dealing.

Question 90

Effect of: Right-of-Way Easement

Answer 90

• Will render a title unmarketable
• If an owners promise to deliver martketable title is paired with a quitclaim deed, the buyer can refuse to close because of the explicit promise. If only a quitclaim deed, no effect of right of way easement.

Question 91

Quitcaim Deed effect on Marketable Title

Answer 91

NO EFFECT

Seller must provide marketable title in quitclaim deed.

Example: Right of Way Easement renders title in quitclaim deed unmarketable

Question 92

How does an easement affect title marketabilty?

Answer 92

• An easement that reduces the value of the property (right of way for the benefit of the neighbor) renders title unmakretable.
• Majority of courts have hel that a beneficial easement (utility easement to service property) or one that was visible or known to the buyer does not constitute an encumbrance.

Question 93

Felony Murder

Remember the Examples.

Answer 93

• Def: A killing committed during the course of a felony
• Requirements
  
  • Defendant must have intent to commit the underlying felony (malice, intent for murder is implied from the intent to commit the underlying felony)
  • Causation:
    
    • Actual: Death must have been cause during the commission or attempted commission of the felony
    • Proximate: Death must have been a foreseeable result of the commission of the felony
• Example: D goes to rob a store and shakes gun only to scare cashier. Gun goes off and kills cashier. Another employee with heart condition see and dies from heart attack. D is liable for felony murdr of BOTH employees b/c foreseeable.

Question 94

Prior Conviction - Impeachment

Answer 94

Prior Conviction

NOT Involving Acts of Dishonesty

Felony:

• If W is Δ: Admissible only if passes 403 Test
• If W is not Δ: admissible but court can exclude under 403 Test

Misdemeanor: inadmissible unless it involves dishonesty/false statements

Prior Conviction

Involving Act of Dishonesty

Acts of Dishonesty = prior conviction required proof of admission of an act of dishonesty or false statement

Both Felonies and Misdemeanors : Always Admissible – Cannot be excluded even under 403

Convictions more than 10 years old (felonies and misdemeanors)

Not admissible unless:

• Probative value substantially outweighs unfair prejudice (invesr of 403) and adverse party is given notice

10 year Date = Either 10 years since date of conviction or from release of confinement, whichever is later.

Question 95

Prior Convictions of Impeachment of:

A Witness that is also a Defendant vs. One that is only a Witness

Answer 95

• Witness only
  
  • Prior Conviction not involving act of dishonesty
    
    • Admissible but court can exclude under the 403 Balancing Test
  • Prior Conviction involving act of dishonesty
    
    • Admissible
  • If in either category, conviction is more than 10 years old: not admissible unless heightened 403 balancing applies.
• Witness - Defendant
  
  • Prior Conviction not involving act of dishonesty
    
    • Inadmissible unless passes 403 balancing Test
  • Prior Conviction involving act of dishonestly
    
    • Admissible
  • If in either category, conviction is more than 10 years old: not admissible unless heightened 403 balancing applies.

Question 96

Expert Testimony

Answer 96

• Expert may state an opinion or conclusion, provided it its:
  
  • Relevant and Reliable
  • Opinion may embrace the ultimate issue
    
    • but in a criminal case, in which the D’s mental state constitutes an element of the crime or defense, an expert cannot state opinion as to whether or not the D had the mental state in issue

Question 97

Choice of Law for Preclusion Cases

Answer 97

• When deciding which jurisdiction’s preclusion law applies, courts will apply the law of the forum whose court rendered the earlier judgment. If earlier judgment was by a state court, that states preclusion law applies via the Full Faith and Credit Clause.
• If earlier judgment was rendered by a federal court having diversity jurisdiction, federal preclusion law applies, BUT federal law calls for applying the preclusion law of the state in which the federal court sits.
• Example: 2 seperate class action suits filed by 2 people in State A & State B.
  
  • Suit #1: Person 1 files in State A federal court. Judgment for D.
  • Suit #2: Person 2 files in State B state court. D moves to dismiss on res judicata.
  • Answer: State Court should look to federal law, because judgment was entered in fed court.

Question 98

FRCP 60(b): After a judgment has been entered, a party may be entitled to have the judgment voided on what grounds?

Answer 98

• mistake, inadvertance, surprise, or excusable neglect
• newly discovered evidence that, with reasonable diligence, could not have been discovered in time for a new trial
• fraud, misrepresentiation, or misconduct by an opposing party
  
  • example: discovering a video that shows that P did not have permanent injury (she was jogging just days after her alleged injury - on only these fact, Fraud is the best ground to request void judgment.
• judgement is void
• judgment has been satisfied, released, or discharged
• any other reason that justifies relief

Question 99

What wholly insulates members of Congress from Tort Liability (ex. defamation) for Statements made on the floor of Congress?

Answer 99

• Speech and Debate Clause of Article 1, Section 6
• Note: Although members of Congress enjoy 1st amendment freedoms, this is not a bsis for having “an unqualified right to speak on matters of public conern at any place and time without having to fear adverse legal consequences”

Question 100

Does the 5th Amendment protect contents of business records?

Answer 100

No, because they are voluntarily prepared documents and therefore not compelled.

5th Amendment protects information sought by the govt of an individual (cannot be corp) that is:

• 1. Compelled
• 2. Incriminating; and
• 3. Testimonial (relates to an assertion of fact)

Question 101

Undue Influence is a defense based on what?

Answer 101

Lack of Capacity

Question 102

Prohibition against questioning a detainee after he has invoked his right to counsel lasts how long?

Answer 102

• The entire time the detainee is in custody for interrogation purposes plus 14 more days after the detainee has returned to his “normal life” - then can be requested regarding the same matter upon recieving a fresh set of miranda warning.
• Note: Right to remain silent must be honored until a “significant time” has passed

Question 103

When is Defendant’s presense required - Fed Rule of Crim Pro

Answer 103

• For a non-misdemeanor offense, the defnedant must be present at every trial stage after formal proceedings have begun. This includes jury selection and impanelment.
  
  • Exception: The proceeding involves only a conference or hearing on a question of law or proceeding involves correction of reduction sentence
• Example - AC malfunctioned in courtroom so judge held jury selection in chambers. D must be present!

Question 104

What happens to adversely possessed property by 2 people when 1 person dies?

Answer 104

• As long as title vests in the 2 people (which is satisfied by showing proper adverse possession), the dead man’s heir will take because the 2 men acquire title as tenants in common.

Question 105

Pretrial Conferences / Time for interrogatories

Answer 105

• 1. As soon as practicable, parties must meet for initial conference to discuss claims and defenses, settlement possibilities, initial disclosures and discovery plans.
     * This is a Rule 26(f) Conference of Parties - “Planning for Discovery”
     * Parties must submit their initial disclosures and proposed discovery plan within 14 days of this meeting,
     * Party may not seek discovery from any source before the parties have conferred for this initial conference.
• 2. Court will them schedule 16(b) Scheduling Conference which will limit the time for joinder, motions, and discovery. Also may include days for pretrial conference, trial etc
• Pretrial Conference (optional) - to exedite trial and foster settlement.
• Final pretrial conference (optional) - to forum a plan for time including the admission of evidence
  
  • Order must be entered that controls the subsequemt course of events
• Note: Interrogatories can include opinions and contentions,
  
  • 25 for each side unless parties stipulate otherwise.

Question 106

4th Amendment: Can a government agent, in the same manner as a private person (i.e. undercover), enter premises w/ consent by deceit?

Answer 106

• Yes. Officer can use deciet to gain entry. Once inside, he is legimately on the premises.
• Exception to warrant requirement, under plain view doctrine, allows police to make a warrantless seizure when they:
  
  • 1. are legitimately on the premises
       * Even if they got there by deceit
  • 2. Discover evidence, fruits, or instrumentalities of a crime or contraband
  • 3. see it in plain view
  • 4. have probable cause to believe or it is immediately apparent that the item is evidence, contraband or fruit or instrumentality of a crime.

Question 107

Solicitation

Answer 107

• Definition: Inciting counseling, advising, inducing urging, or commanding another to commit a crime with specific intent that the person commit the crime
• the offense is complete the moment the solicitation is made, regardless of agreement
• Soliciation merges with the crime solicited if it was actually committed
  
  • Thus, accused cannot be convicted of both solicitation and the principal offense.

Question 108

11th amendment

Answer 108

• Modifies judicial power by prohibiting a federal court from hearing a private party or foreign government claims against a state govt
• it does not bar actions by the US govt against a state
• Typically only bars suits for damages, not suits involving injunctive relief

Question 109

Defense to Strict Liability

Answer 109

• Assumption of Risk: If Plaintiff knowingly, voluntarily, and unreasonably or reasonably subjected herself to the danger - she will not prevail on a claim of strict liability
  
  • Example: Hot air ballooning is deemed abnormally dangerous activity in jx. Co. put up fense, with signs not to enter. Golfer jumped over to get golf ball and was stuck by a crash landing hot air balloon. - P assumed risk. She will lose on claim of SL against company
• Note: Ordindary Contributory negligence will not be a defense to SL and plaintiff will still recover despite having acted negligently (P was inattentive, did not discover a risk she reasonably should have)

Question 110

Lien priority can be affected by the modification of the mortgage…when?

Answer 110

• Where there is both a senior mortgage and a junior mortgage, modifications to the senior mortgage that are detrimental to the junior mortgage, such as raising the interest rate, or the principal amount, thus making it more burdensome on the debtor, will give the junior mortgage priority.

Question 111

Remedy at Law (damages) is inadequate for what?

Answer 111

• Unique/Rare things such as Real Estate! (and antiques, rare things)
• Court will enforce specific performance

Question 112

Implied-in-fact Contract

Answer 112

• Formed by manifestations of assent through conduct, rather than oral or written language.
• Example of enforceable implied in fact K: Attorney recieved a document at his office with an attached note from a client for whome he had just finished drafting a will. Note said “do you think this K for sale for my boat complies with state law? I would talked to you in person but im going out of town. Be back next week”. Attorney reviews and writes 1 page letter and charges client $500. Clien refuses to pay.
  
  • Client and Attorney previously engaged in conduct that would indicate some sort of contractual relationship, new question on diff topic manifests assent to further services from the attorney.
  • Implied in fact K can be formed despite lack of essential terms

Question 113

Expectation Damages does not include…

Answer 113

Attorneys fees

Question 114

Double Jeopardy does not apply when?

Answer 114

• It does not apply to trials by seperate soveriegns (this includes being tried for the same conduct by two different states).
• General Rule: 5th amendment provides the right to be free of double jeopardy for the same offense.

Question 115

Supplemental Jurisdiction

Answer 115

• Federal Question - Allows additional claims and parties to be brought into a federal case without independently satisfying SMJ as long as there is an underlying controversy that does have SMJ and:
  
  • the claim is so related to the claims in the action that they form part of the same case of controversy - more generous standard than the below
• Diversity - When the core claim is based solely on diverity, there is no need for diversity and amount in controvery for supplemental claims if:
  
  • The claim is compulsoy, joinder of additional parties to compulsory counterclaims, cross-claims, joinder of multiple plaintiffs; and
  • claim arises from the same nucleus of operative fact as the underlying case.

Question 116

When a buyer and seller enter into a valid Real Estate K that satisfies the Statute of Frauds, can the parties enter into a oral agreement to abandon/rescind the K without a writing?

Answer 116

• Yes, the oral agreement effectively abrogates their prior contract, whether the rescission agreement is executed or executory.
• This recission is not a modification and therefore, need not satisfy the writing requirement of SoF.
  
  • If the parties attempted to modify or alter the written K, a writing would be necessary.

Question 117

Tenancy in common characteristics

Answer 117

• Tenants in common can receive their interests at different times and from difference conveyances.
• They can hold unequal shars of the land, even if they have full use of all the premises
• When a TIC wants to create an easement or resolve a boundary dispute, that action will not affect the legal rights of any other tenants in common who do not sign he grant or agreement

Question 119

Tenancy by the Entirety v. Joint Tenancy

Answer 119

• Tenancy by the Entirety can only be distinguished by: divorce, death of one spouse, creditor of both spouses, or mutual agreement
• Joint Tenant can make an inter vivos conveyance of her interest in property. This results in severance and Tenancy in Common is created.