MINIMUM COMPETENCY Flashcards
1
Q
Tort of invasion of privacy:
A
- Intentionally portraying someone in false light
2. Highly offensive to reasonable person
2
Q
Invasion of privacy by public disclosure of private facts or intrusion:
A
- portrayal of private facts or intrusion
- in a private area
- highly offensive to reasonable person
4 not legit concern to public
3
Q
Defamation
A
- defamatory statement
- regarding plaintiff/plaintiff’s reputation
- regarding plaintiff
- published by third party
- damages
Must be at least negligence
4
Q
Intentional interference with prospective economic advantage
A
- no contract exists yet
2. defendant tortiously interferes with expected contract
5
Q
Measure of damages in construction contract?
A
Expectancy, measured by cost of repair.
6
Q
When is specific performance not available?
A
If breach was minor or not material to contract–nominal damages
7
Q
Minimum required number of directors on board of corporation?
A
One is enough
8
Q
When must action to prevent merger be filed?
A
90 days after effective date or else you cannot sue
9
Q
When can party discover facts known/opinions of non-testifying expert?
A
Only on showing that party seeking discovery cannot get the info without undue hardship or other concern of injustice.
10
Q
General rule about witness hearing testimony of another witness
A
Court must exclude witness so he cannot hear other witness testimony unless the person’s presence is essential to presentation of case.
11
Q
Good-Faith exception for warrants
A
Even if warrant invalid, search not illegal if cop relies in good faith on warrant
12
Q
Test for Chimel in search of car:
A
Cop must show that
- D can reach passenger compartment at time of search and poses risk to cop safety/need to preserve evidence; or
- reasonable that evidence of offense might be found in the car
13
Q
Test for regulating expressive conduct:
A
- important gov’t interest
- unrelated to suppression of speech
- no further burden than necessary
Not strict scrutiny.
14
Q
Non-public forum test:
A
Law must be
- viewpoint neutral and
- rationally related to legit gov’t interest
15
Q
Public forum test:
A
Law must be
- viewpoint neutral;
- narrowly tailored to further significant gov’t interest;
- leave open alternative means of communication
16
Q
When is financing statement seriously misleading?
A
Has the debtor’s name wrong and doesn’t fix it
17
Q
What must happen when debtor moves?
A
Financing statement must be filed in new place where debtor lives within 4 months
If it doesn’t, it loses priority of perfection
18
Q
Test for relevancy
A
Evidence must make a material fact more or less likely than would be the case without the evidence.
19
Q
Present impression exception to hearsay
A
- made when person saw or heard event
2. made statement shortly after seeing or hearing event
20
Q
Excited utterance exception to hearsay
A
- made by person in heightened sense of passion
2. statement made before declarant calms down or has time to think about the situation
21
Q
Test for gender-based classifications
A
Intermediate scrutiny
- state must have important interest
- substantially related
** Ohio supremes might require persuasive justification for the classification
22
Q
Elements of negotiable instrument:
A
- in writing
- signed by maker or drawer
- made payable to order or bearer
- for a sum certain
- payable upon presentment or demand
23
Q
Clergy/congregant privilege
A
Protected from discovery/evidence if
- confidential communication
- made during course of rendering spiritual guidance
24
Q
Expectancy damages
A
Damages that seek to put non-breaching party where he would have been at time of performance.
Still must mitigate.
25
Capacity - defense to contract
Determined at time contract made; not after
26
First Amendment guarantee of free exercise of religion
Gov't can't enact law interfering with free exercise.
27
Exception to guarantee of free exercise of religion
Laws of general applicability are constitutional if
1. burden is incidental
2. has otherwise neutral purpose
3. not directed at religion
28
Test for laws that threatens to respect or infringe on religion
LEMON
1. secular purpose
2. primary effect doesn't advance or inhibit religion
3. doesn't result in excessive entanglement with religion
29
What does atty have to do if client is committing fraud/crime?
1. Atty may not faciliate
2. If client insists, atty must withdraw
3. atty may need to disclose to court or authorities
30
When can subordinate atty rely on supervisor?
1. If there is arguable question; and
| 2. supervisor handling is reasonable
31
Plain View test
1. criminality of evidence is readily apparent;
2. officer has lawful access to see the place where it is in plain view;
3. officer has lawful access to area required to take the evidence
32
Open Fields
Evidence can clearly be seen from looking at property; no REP
Doesn't apply if the evidence is hidden by bushes or fences
33
Spousal elective share
Spouse can choose to take 2 vehicles.
Not automatic; spouse must elect to take her share by filing claim -- cannot use this to take property that has been otherwise disposed of under will
34
When can party amend pleading?
Within 28 days of filing or 28 days after responsive pleading due
If outside this window, party needs leave of court. Court should grant unless undue prejudice to other party.
35
What happens if property that buyer purchases has delinquent taxes?
Buyer takes property subject to those taxes.
But Buyer can seek the amount from the seller.
36
Business record exception to hearsay
1. record made by employee
| 2. in ordinary course of biz
37
Statement made for purpose of medical diagnosis or treatment - exception to hearsay
Admissible if made for purpose of getting treatment/care
Doesn't count if declaring taking about who caused his injury
38
Test for enforcing liquidated damages provision
1. damages must have been difficult to estimate at formation
2. not penalty
3. reasonable/proportional
39
Ohio Slayer Statute
beneficiary who causes death of decedent is barred from taking interest under testator's will.
Proven if conviction of murder/voluntary manslaughter
40
What are essential elements of land-sale contract?
1. names of parties
2. statement of intent to convey interest in land
3. adequate description of property being sold
41
What process must dissenting shareholder follow?
1. Must dissent in 10 days
2. Must give corp 3 months to give him his shares
THEN he can sue
42
Attorney's duty to court and opposing counsel:
1. may not commit fraud on court
2. may not intentionally misrepresent facts to opposing counsel
3. if prosecutor, higher duty imposed, including handing over brady evidence
43
Arson in Ohio
Doesn't require that structure be occupied
Cause, or create substantial risk of physical harm to structure
44
Attempt in Ohio
D need only take substantial step toward committing crime
45
When can deadly force be used in crime?
If D reasonably fears death or great bodily harm.
But must retreat before resorting to deadly force.
MAY NOT BE USED TO PROTECT PROPERTY.
46
Elements for SI to attach:
1. debtor must sign authenticated agreement
2. creditor must take value
3. debtor must acquire rights in collateral
47
How must vehicle be perfected?
Noting lien on vehicle certificate of title.
48
When does inventory supplier acquire PMSI in inventory?
1. file financing statement before delivery
| 2. send authenticated notice to adverse creditors
49
Trespass to land
1. intentional invasion by defendant
2. of plaintiff's land
Mistake of fact is not defense
50
Private nuisance
1. substantial and unreasonable interference
| 2. with use or enjoyment of property
51
"Substantial"
| private nuisance
Annoying to average person in community
52
"Unreasonable"
| private nuisance
utility of D's actions are not greater than injury caused to P.
53
"abnormally dangerous activity"
| strict liability
1. creates foreseeable and highly significant risk of physical harm, even when used reasonably
2. activity not commonly engaged in
E.g., mining/blasting; NOT FIREWORKS.
54
When is conveyance of property deed proper?
owner delivers to buyer
recording is not enough
55
Destruction of corpose
Outrageous treatment of human corpse
56
Kidnapping
1. movement/concealment
2. against victim's will
3. by force or threat of force
57
What is effect of death on contract?
Doesn't terminate contract if valid; but if not accepted yet, it will revoke offer
58
Crime-fraud exception to A/C privilege
not protected if communications made in furtherance of crime and fraud.
59
What is required to object to discovery request?
- state objection
- try to work out with opposing counsel
- submit to court motion for protective order in 28 days of receiving the request
- if work product, must describe info withheld enough so that court can order whether it is privileged
60
Negligence
1. breach of duty of reasonable care
2. that is owed to P
3. causing damages
Duty is owed to foreseeable plaintiffs to act as reasonably prudent person would under circs.
61
Entrusted employee rule
| commercial paper
1. employee is in position like bookkeeper;
2. employee fraudulently writes checks
3. employer cannot challenge forgery to avoid paying check
62
discovering medical records
discoverable unless doctor/patient privilege applies
and discoverable even if the privilege applies if the condition at issue in litigation is in records
63
work product still discoverable if:
party seeking discovery shows that
1. witnesses interviewed are unavailable; or
2. the info can't be obtained without substantial hardship
64
What is required for fundamental change to corporation?
2/3 vote of shareholders who are allowed to vote
65
What are fundamental changes?
- name change
- amendment to corp's articles of incorporation
- sale of substantially all assets of corporation
66
How to amend regulation of corp?
Majority vote
67
Who is in charge of day-to-day operations of corporation?
Board of directors
68
Ademption
Property that is bequeathed is no longer in estate when testator dies.
Gift will lapse and falls to residue.
69
When is employer liable for acts of independent contractor?
If employer exercises sufficient control over his conduct
70
Frolic vs. detour
| respondeat superior
Frolic
- major detour from scope of employment--no vicarious liability
Detour
- minor stop
TEST = was employee acting in furtherance of employer's interests?
71
Requiring disclosure of group members
| first amendment
Unconstitutional if it has chilling effect on group membership
72
Group association and first amendment
may punish illegal membership if
1. group purpose if illegal
2. individual knowingly belongs to the group
3. individual encourages or partakes in illegal activity
73
What must attorney do for contingent-fee arrangement?
1. informed consent
2. detail how the fee is calculated
3. whether client is responsible for expenses
4. in writing
74
"partnership"
agreement between 2 or more parties to operate business and share the profits
doesn't require writing, but if there is writing, the writing controls the relationship
75
When is withdrawal from partnership wrongful?
Whether the withdrawal from the partnership is wrongful or not depends on the reason for the withdrawal and whether the partnership was
for a term or at will. Any withdrawal before the end of the term is wrongful, unless it is permitted in the agreement, or resulted from a death, bankruptcy, etc.
76
What is effect of withdrawing from partnership?
The withdrawing person might have to pay damages for his withdrawal if wrongful.
Withdrawal doesn't automatically dissolve partnership.
77
How to dissolve partnership?
Must "wind up" the affairs.
If a partners has wrongfully dissociated, he can't participate in winding up.
78
"Winding up affairs"
- all assets must be sold
- debts of partnership paid
- partner equity returned
- profits paid to partners
79
Standing of passenger to challenge stop of car vs. search of car
No standing to challenge search, but can challenge stop
80
Battery (tort)
1. intentionally
2. causing harmful or offensive contact
^ based on what reasonable person considers harmful
81
Character evidence in civil actions
Not allowed unless
- character is at issue in cause of action
- party opens the door
82
When can criminal conviction be used in civil case?
For impeachment if
- crime of dishonesty/fraud or
- felony committed within 10 years
83
Creditor's ability to foreclose on property for one spouse's personal debt:
Joint tenancy - creditor can foreclose on joint tenant's portion of property and become TIC with other joint tenants.
Tenancy by entirety - creditor cannot foreclose on the property for a debt by one individual spouse.
84
Elements for restrictive covenant
1. parties intended covenant to run
2. purchaser had notice
3. vertical privity
4. restriction touches/concerns the land
85
Real defenses
Available against HIDC or non HIDC:
- infancy
- incapacity
- duress
- illegality
- fraud
- forgery
86
Personal defenses
Not available against HIDC
- Issuance
- normal contract defenses
87
When must party be joined?
1. action for injury and property damages must be combined with wrongful death action for those injuries;
2. husband and wife must be joined if one has derivative claim arising out of same wrongful act;
3. minor suffers injury and parent has claim for loss of consortium
4. claim for injury to employee/agent if same act that injured employer/principal
