Missed MBE Questions/Concepts

Question 1

Seeking reimbursement for mortgage payments

Answer 1

The man, as the mortgagor, had personal liability for the loan. The purchaser assumed the mortgage debt. As soon as the man paid an overdue installment, he acquired the right to seek reimbursement under the law of suretyship

Question 2

Conspiracy and Circumstantial Evidence

Answer 2

A conviction of conspiracy requires proof of an agreement to commit a crime and, in some jurisdictions or under some statutes, proof of an overt act in furtherance of the agreement. The conspiratorial agreement need not be proven through direct evidence, as long as the circumstantial evidence taken in the light most favorable to the prosecution is sufficient to allow a rational jury to find beyond a reasonable doubt that there was a conspiratorial agreement

Question 3

Suggestive Identification with a in court identification

Answer 3

Even if an out-of-court identification procedure is unnecessarily suggestive, which this one plainly was, suppression of in-court testimony is not required if the eyewitness’s identification is shown to be reliable under a multi-factor inquiry

Question 4

Transfer of a lease/Tenants in Common

Answer 4

An individual tenant in common may transfer his or her undivided interest by a lease for a term of years. The tenant obtains only the transferor’s concurrent right of possession with the other tenants in common. The man, as a tenant in common, validly transferred his interest in the tenancy in common to the tenant by a lease for a term of years. The tenant must, however, share the right of possession with the other cotenants, the sister and the cousin, for the term of the lease. The man must share the rental income with the sister and the cousin

Question 5

There does not need to be diversity of citizenship where supplemental jurisdiction is valid

Answer 5

The federal statute that confers supplemental jurisdiction, 28 U.S.C. § 1367, has two requirements. First, the federal court must have original jurisdiction over one or more of the plaintiff’s claims. If it does, the court may exercise supplemental jurisdiction over any other claim(s) in the action that “form part of the same case or controversy under Article III.” The Supreme Court has interpreted that language to implement the “common nucleus of operative fact

Question 6

Valid death escrow/placing deed beyond control

Answer 6

When the man delivered the deed to his attorney with instructions to deliver it to the nephew on his death, he was attempting to create a valid death escrow. To create a valid death escrow, however, the man had to place the deed beyond his control, reserving no power over it once it had been given to the attorney. Because the man instructed the attorney to return the deed to the man if he asked, the man did not place the deed beyond his control, and no death escrow was created

Question 7

Double Jeopardy attachment

Answer 7

For double jeopardy purposes, jeopardy does not attach until trial, when the jury is sworn in (or, in a bench trial, when the first witness is sworn in).

Question 8

Strict Liability and Assumption of Risk

Answer 8

Assumption of risk can be an affirmative defense to strict liability, and in this case, the state employee willingly took on auditing duties in potentially dangerous environments.

Question 9

Failure to give a proper Miranda Warning/In Home

Answer 9

Under the U.S. Supreme Court’s decision in Orozco v. Texas, 394 U.S. 324 (1969), the man was very likely in custody, even though he was in his home, given the time and manner of the police entry. Accordingly, the police could not properly interrogate the man without first providing him with Miranda warnings

Question 10

Inspecting a document used for refreshing a witness memory

Answer 10

FRE 612 provides that if a writing is used to refresh a witness’s memory while the witness is testifying, an adverse party has the right to inspect the writing. If the writing was used to refresh the witness’s memory before the witness testified, then the adverse party may inspect the writing “if the court decides that justice requires” it

Question 11

Trespass/necessity and removal of trespassers property

Answer 11

A landowner has no right to forcibly expel a trespasser or a trespasser’s property when the trespasser was driven by necessity to trespass on his land, and the landowner is liable for any damage to property of the trespasser that results from an expulsion. If the car had damaged the homeowner’s property, the homeowner could have collected damages from the driver

Question 12

Battle of the forms/ materially alters

Answer 12

Because the buyer’s offer was silent as to arbitration, the arbitration provision in the seller’s acknowledgment should be characterized as an additional term. Under UCC § 2-207(2), an additional term is considered a proposal for addition to the contract. Section 2-207(2) also provides that an additional term becomes a term of the parties’ contract unless certain specified circumstances are present. One such circumstance is where an additional term materially alters the parties’ contract. Because none of the other circumstances appear applicable here, the arbitration provision will be considered a term of the contract if the seller can successfully argue that the provision did not materially alter the parties’ contract

Question 13

Schooling and right to control the upbringing of their children

Answer 13

U.S. Supreme Court precedent establishes that a state law requiring children to attend public schools infringes on the right of parents to control the upbringing of their children. Supreme Court precedent also establishes that this right is a fundamental aspect of liberty protected by the due process clause of the Fourteenth Amendment. A state law that infringes on that right must therefore undergo strict judicial scrutiny, which requires the state to prove that the law is necessary to further a compelling state interest.

Question 14

A college student sued an amusement company for injuries he sustained when the amusement company’s roller coaster allegedly malfunctioned so that the student fell out. At trial, after the student presented his case, the amusement company called a witness who testified that just before the accident he had heard a bystander say to the bystander’s companion, “That crazy fool is standing up in the car.”

The student has offered the testimony of another witness who would testify that the day after the accident she was with the same bystander, and that in describing the accident, the bystander told her that the car had jerked suddenly and “just threw the guy out of his seat.”

How should the court rule with respect to this offered testimony?

Rule it admissible only to impeach the bystander’s credibility

Answer 14

The statement is admissible only as a prior inconsistent statement to impeach the bystander. It contradicts the bystander’s earlier statement, which suggested that the student was entirely at fault by standing up in the car. The testimony is not admissible as substantive evidence to prove the facts asserted in the statement, because it would be hearsay. But it is admissible to impeach the hearsay declarant, as FRE 806 provides that a hearsay declarant’s credibility may be attacked by any evidence that would be admissible if the declarant had testified as a witness.

Question 15

Business records and nonoccurrence of an event

Answer 15

The hospital record itself is hearsay, but it qualifies as a record of regularly recorded conduct under FRE 803(6). The absence of an entry in such a record is admissible under FRE 803(7) to prove the nonoccurrence of a matter that would normally have been recorded if it had occurred. Thus, the absence of an entry can be used by the patient to establish that the medication was not administered.

Question 16

Defamation REQUIRES ACTUAL FUCKING MALICE; Not Negligence

Answer 16

In a defamation action brought by a candidate for public office, the plaintiff must establish more than mere negligence with regard to the truth or falsity of the allegedly defamatory statement of fact. The plaintiff must establish that the defendant acted with actual malice, that is, that the defendant in fact knew the statement to be false or entertained serious doubts as to the truth of the statement. Here, the candidate cannot establish actual malice on the part of the editor in publishing the statement.

Question 17

Life Tenant duties and remedies for remainderman picking up the slack

Answer 17

In the absence of a contrary direction in the document creating the life estate—in this case, the will—it is the duty of the life tenant to pay all general property taxes that accrue during the continuance of the life estate. The only limitation on this duty is that the life tenant has no duty to expend more than the income that can be generated from the land. Because the fair rental value of the farmland was substantial, this limitation does not apply. If the remainderman does pay any property taxes due during the life tenancy, he or she is entitled to a judgment against the life tenant for reimbursement.

Question 18

Content based restriction analysis

Answer 18

The ordinance is a content-based regulation of speech because it permits an expressive activity (picketing) on one subject (neighborhood zoning requirements) and prohibits it on all other subjects. Such a content-based restriction on expression presumptively violates the freedom of speech protected by the First Amendment. To justify a content-based restriction, the government must satisfy strict judicial scrutiny, proving that the restriction is necessary to serve a compelling government interest

Question 19

Equitable Conversion and Death of Seller

Answer 19

Many events may occur during the executory time period, which is the time between the contract signing and the closing. If the seller dies during this time period leaving a will that devises the real estate to one person and the personalty to another, and if the contract contained no contingencies or all contingencies had been satisfied at the time of the death, the doctrine of equitable conversion applies

Question 20

Accomplice Liability and culpable mental state

Answer 20

A conviction for accomplice liability requires not only proof that an accomplice aided a principal’s crime but also proof that the accomplice acted with a culpable mental state. Because the passenger had no prior knowledge of the driver’s crime and no intent to help the driver commit that crime, the passenger may not properly be convicted

Question 21

Equitable Servitude

Answer 21

The covenant must be in writing (e.g., the rancher’s deed).
The promising parties must have intended for the restriction to be enforceable by and against successors (e.g., a deed binding “heirs and assigns” to the servitude).
The covenant must touch and concern the land (i.e., relate to the use, enjoyment, or occupation of the dominant and servient estates).
If the person against whom the covenant is to be enforced is a purchaser, that person must have notice of the covenant (e.g., notice from a recorded deed).

Question 22

The right to subjacent support

Answer 22

A landowner has the right to have the land physically supported in its natural state. The right to subjacent support—i.e., support from beneath the surface of the land—arises when the landowner conveys to a third party (here, the company) the right to access and remove oil, gas, or minerals from beneath the land. Then the owner of the rights is strictly liable—i.e., liable without proof of fault—for any failure to support the land and buildings that existed on the land when the mining rights were conveyed, provided that the damage would have occurred in the land’s natural state.
Here, removing the oil caused the ground to subside and damaged the landowner’s residence. The residence existed before (predated) the company’s oil rights and its presence did not contribute to the subsidence. And though the company acted reasonably by carefully removing the oil from the land and complying with all laws and regulations, the company is strictly liable for damaging the residence

Question 23

Installment Land Contract

Answer 23

An installment land contract (i.e., contract for deed) is a contract under which the seller retains title to the property until the buyer makes the final payment under an installment plan. Traditionally, a buyer who missed a single payment was deemed to have defaulted on the contract, and the seller could keep all prior installment payments and take back the property. Today, states handle a buyer’s failure to pay in one of three ways:
Allow the seller to retain ownership of the property but require some form of restitution to the buyer
Offer the buyer an equitable right of redemption—i.e., the buyer can keep the property by paying the full balance of the installment contract at any time prior to the foreclosure sale
Treat the installment land contract as a mortgage, so the seller must foreclose to gain title to the property and the buyer has an equitable right of redemption and other protections
If the installment contract contains an acceleration clause, then the full balance due under the contract is due upon default and the buyer must pay it to redeem the property.

Question 24

Minority position on hostility and adverse possession

Answer 24

In most jurisdictions, possession is hostile if the possessor objectively demonstrates an intent to claim the land—regardless of the possessor’s subjective intent. However, a minority of jurisdictions does consider the possessor’s subjective intent. Some of these jurisdictions require that the intent be based on the possessor’s good-faith belief that he/she has the legal right to possession, while others require that the intent be based on bad faith (i.e., aggressive trespass).

Question 25

Deed Validity

Answer 25

A deed is a legal instrument that transfers an ownership interest in real property. To be valid, a deed must:
be in writing and signed by the grantor (but not the grantee)*
unambiguously identify the grantor and the grantee
unambiguously describe the land and
include words of transfer.

Question 26

land sale + waiver but seller still refuses to sale

Answer 26

If a seller cannot convey a marketable title, the buyer can rescind the land-sale contract. But if the buyer accepts the land with the defect and the seller refuses to perform, then the buyer can (1) rescind the contract and seek restitution, (2) seek specific performance with an abatement of the purchase price, or (3) sue for damages

Question 27

Subrogation and Mortgages

Answer 27

Under the doctrine of subrogation, a third party (subrogee) who pays another’s mortgage loan in full becomes the owner of the loan and the mortgage securing that loan to the extent necessary to prevent unjust enrichment. This means that the subrogee may seek reimbursement from the debtor (the former owner) or enforce the mortgage. Therefore, the manager can enforce the mortgage against the bookkeeper’s one-half interest in the store to recover the bookkeeper’s share of necessary expenses.

Question 28

Joint Tenants cannot devise their interest at death but can during life

Answer 28

A joint tenancy is a type of concurrent estate in which each cotenant has an undivided and equal interest in the property with the right of survivorship. The right of survivorship means that a joint tenant’s interest disappears upon that tenant’s death and the remaining joint tenants’ interests automatically expand to absorb it. As a result, joint tenants cannot devise their interests upon death.

However, joint tenants are free to convey their interest to another during life without the other tenants’ consent. The transfer will sever the joint tenancy and convert it into a tenancy in common, under which each cotenant has an equal right to possess the property without the right of survivorship. As a result, each tenant in common is free to unilaterally transfer or devise his/her interest.

Question 29

Equitable Conversion vs Uniform Vendor and Purchaser Risk Act

Answer 29

The primary issue in this case is which party bears the risk of loss. Most states follow the logic of the doctrine of equitable conversion and place the risk of loss on the buyer during the executory period—i.e., the period between the execution of the real-estate contract and closing. This is true regardless of whether the buyer takes possession of the property during that period.

However, a minority of jurisdictions have adopted the Uniform Vendor and Purchaser Risk Act. Under this act, the risk of loss remains with the seller until the buyer takes possession of or receives legal title to the property

Question 30

First in time rule + recording acts + mortgages vs judgment liens

Answer 30

In foreclosure proceedings, lien priority is generally determined by the “first in time, first in right” rule. Under this rule, liens that arise first (senior liens) typically have priority over liens that subsequently arise (junior liens). But if the jurisdiction has an applicable recording act (here, a race-notice act), then the recording act will determine priority.

A race-notice act gives a subsequent purchaser priority over a prior conflicting interest if the purchaser (1) took its interest without notice of the prior interest and (2) recorded first. A purchaser must “pay value” for the interest in real property to be protected by the recording act. Mortgagees are considered to have paid value and are therefore protected, but this protection does not always extend to judgment liens.

Here, pursuant to the jurisdiction’s second statute, the pedestrian’s right to the driver’s real property did not arise until a judgment was (1) rendered in the pedestrian’s case against the driver and (2) properly filed. Since the driver granted the bank a mortgage before a judgment was rendered against him and recorded, the bank’s mortgage interest was first in time. As a result, the bank has priority under the “first in time” rule

Question 31

what are the effects of a partial condemnation

Answer 31

Condemnation is the taking of land for public use or because it is unfit for use. The right of a tenant upon condemnation depends upon whether the condemnation is:

partial – where only a portion of the leased property is taken, so the tenant must continue to pay rent but is entitled to compensation for the portion that was taken or

complete – where the entire leased property is taken, so the tenant is discharged from his/her rent obligation and is entitled to compensation for the taking.

Question 32

Earnest money as liquidated damages

Answer 32

Real-estate contracts usually require the buyer to make a deposit of a portion of the purchase price (i.e., an “earnest money” deposit). A liquidated damages clause is also often included, which allows the seller to retain the buyer’s deposit if the buyer breaches the contract and refuses to purchase the property. This clause is generally enforceable when the amount of liquidated damages is reasonable—e.g., no more than 10 percent of the purchase price. But when evaluating reasonableness, courts may also consider:

the sophistication of the buyer
the nature of the transaction (commercial v. residential) and
whether the seller suffered an actual loss (if not, courts may refuse to enforce the clause).

Question 33

Judicially Supervised Sales require notice to junior interest holders

Answer 33

If this doesn’t occur then the junior interest holders security device will remain after the foreclosure

Question 34

Subject to vs assumed mortgage distinction

Answer 34

A debtor (mortgagor) is free to sell mortgaged property unless the mortgage agreement states otherwise. After the sale, the mortgage remains attached to the property and the debtor remains personally liable for the debts secured by the mortgage. But the buyer's obligations with respect to the debt depend on whether the buyer:
took subject to the mortgage – in which case the buyer does not agree to pay and is not personally liable for the debt or assumed the mortgage – in which case the buyer expressly agrees to pay and becomes primarily liable for the debt, while the debtor becomes secondarily liable as a surety

Question 35

first in time, first in right BUT modification of mortgage occurs

Answer 35

The “first in time, first in right” rule is used to prioritize interests when, as here, no recording act is provided. And modification of a senior mortgage generally does not forfeit that mortgage’s priority over a junior mortgage. But if the modification materially prejudices the junior mortgage, then the senior mortgagee subordinates its interest as to the modification—but the original mortgage remains superior.

Question 36

RAP/right of first refusal but granted in a lease

Answer 36

Under the common-law Rule Against Perpetuities (RAP), specific future interests are valid only if they must vest or fail by the end of a life in being plus 21 years. A right of first refusal is one type of future interest that is subject to common-law RAP unless the right was granted in a lease to a current leasehold tenant. Therefore, the manufacturer’s best argument that RAP does not apply to the manufacturer’s right of first refusal is that it was granted in conjunction with a lease.

Question 37

Equal Protection and Grand Juries

Answer 37

A grand jury determines whether probable cause exists to formally charge a person with a crime and consists of citizens who reside in the judicial district where the grand jury sits. Inherent in the concept of a grand jury is that it is representative of the community. As a result, the Fourteenth Amendment equal protection clause prohibits racial discrimination in the selection of grand jurors.

Question 38

Double Jeopardy / Manifest Necessity

Answer 38

The Fifth Amendment double jeopardy clause bars a second prosecution for the same offense once jeopardy has attached—e.g., when the jury is impaneled and sworn in. However, there is no bar to a second prosecution when a mistrial is declared:

at the defendant’s request or with the defendant’s consent o
due to manifest necessity—i.e., a situation rendering it impossible to continue the trial or reach a fair outcome.
One example of manifest necessity is a hung jury—i.e., a jury that cannot reach a unanimous verdict after deliberation

Question 39

Felony Murder + Accomplice

Answer 39

if the accomplice did not kill, attempt to kill, or intend to kill, then the death penalty cannot be imposed on the accomplice unless the accomplice:

significantly participated in the commission of the underlying felony and
acted with reckless indifference to human life.

Question 40

4A/ Particularity in warrant

Answer 40

A Fourth Amendment search or seizure must generally be authorized by a warrant that particularly describes the place to be searched and the items to be seized. The search may not exceed the authority granted by the warrant.

Therefore, the search must end once the items specified in the warrant have been seized. If not, items seized during the extended search should be suppressed unless an exception to the warrant requirement applies.

One exception implicated here justifies the warrantless seizure of illegal items discovered in plain view during a valid protective sweep. A protective sweep is permitted if police have a reasonable suspicion that there is a confederate (i.e., someone who might launch an attack) in spaces immediately adjacent to the place of arrest. However, the sweep must be limited to a quick visual inspection of places in which a person might be hiding.

Question 41

Warrant Requirements

Answer 41

Warrant requirements
Based on probable cause
Supported by oath or affidavit
Issued by neutral & detached magistrate
Particularly describes place to be searched/items to be seized

To be constitutionally valid, a search warrant must:
be based on probable cause
be supported by a sworn oath or affidavit
be issued by a neutral and detached magistrate and
particularly describe the place to be searched and the items to be seized.

Question 42

Anticipatory Search Warrants

Answer 42

A search warrant must (1) be issued by a neutral and detached magistrate based on probable cause, (2) be supported by a sworn oath or affidavit, and (3) describe the place to be searched and the items to be seized with particularity. When police seek the issuance of an anticipatory search warrant—i.e., a warrant that becomes effective only upon the occurrence of a triggering condition—the probable cause requirement is met if:
at the time of issuance, there is probable cause to believe that the triggering condition will occur and
if the condition does occur, there is a fair probability that contraband or evidence of a crime will be found at the place to be searched

Question 43

School Officials and Reasonable Suspicion

Answer 43

school officials acting independent of law enforcement need only reasonable suspicion that a student is violating (or has violated) the law or school rules—not a warrant or probable cause—to conduct a search of that student

Question 44

Double Jeopardy/greater offense

Answer 44

The Fifth Amendment double jeopardy clause generally prohibits a second prosecution after a prior conviction for the same offense. Offenses are considered the same for double jeopardy purposes if one is a lesser included offense of the other. That is because every element of the lesser offense is included in the greater offense. Therefore, when a conviction of a lesser included offense stems from a guilty plea, the double jeopardy clause bars a subsequent prosecution for the greater offense unless:

an event necessary to establish the greater offense occurred after the plea was entered or
the greater offense was charged before the plea was entered

Question 45

Checkpoints

Answer 45

the Supreme Court held that a checkpoint at which motorists were stopped so that officers could ask for information about a specific crime committed on that roadway was reasonable because:

the stop’s primary law enforcement purpose was to elicit evidence to help police apprehend individuals other than the vehicle’s occupants (here, to apprehend a murderer)
the stop significantly advanced a public concern (here, solving a murder) and
the police tailored the checkpoint to fit important criminal investigatory needs and to minimally interfere with Fourth Amendment rights (here, the checkpoint stops were brief)

Question 46

Searching a person not named in the warrant

Answer 46

When executing a warrant, police may not lawfully search a person who is on the premises—but is not named in the warrant—without independent justification for that search. Independent justification may come from:
reasonable suspicion that the person is armed, which allows officers to pat down the person’s outer garments or
probable cause to believe that the person committed, is committing, or is about to commit a crime

Question 47

Traffic stops and Miranda

Answer 47

Although traffic stops restrain freedom of movement, drivers are generally not in custody for Miranda purposes because those police encounters are typically brief.

Question 48

Larceny

Answer 48

Larceny is the trespassory taking and carrying away of another’s personal property with the specific intent to permanently deprive the person of that property. The carrying-away (i.e., asportation) element is satisfied when the property is moved even a short distance (e.g., mere inches). Additionally, a defendant is guilty of larceny even if the property is returned to the place from which it was taken or to its rightful owner.

Question 49

Bilateral Approach to Conspiracy

Answer 49

Since the common law follows the bilateral approach to conspiracy, a conviction requires proof of at least two guilty minds. For this reason, and because of the need for consistency in verdicts returned by a single jury,* a conspirator cannot be convicted if all other coconspirators are acquitted at the same trial.*

However, the concern for consistent verdicts does not extend to verdicts returned by different juries. As a result, the acquittal of all other alleged coconspirators in separate trials does not warrant the acquittal of the sole remaining defendant.

Question 50

The Pinkerton Rule

Answer 50

holds all conspirators liable for any foreseeable crimes committed by a coconspirator in furtherance of the conspiracy—regardless of whether they had knowledge of those crimes. But whether the man should be held liable for other crimes committed by his coconspirators is not at issue. Instead, the key issue is whether the man can be convicted of conspiracy when the two women were not.

Question 51

Attempt

Answer 51

Criminal liability for attempt arises when a person:

has the specific intent to commit a crime (murder)
performs an overt act in furtherance of the target crime (shoots at boss) but
does not complete it (bullet missed the boss).

Question 52

robbery

Answer 52

A robbery conviction requires proof that the defendant (1) committed larceny, (2) took the property from the victim’s person or in the victim’s presence, and (3) did so by force or intimidation.

Question 53

Agency theory and proximate cause theory for Felony murder

Answer 53

Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony. If the killing is caused by someone other than the defendant, then the defendant’s liability for felony murder depends on the theory adopted by the jurisdiction:

agency theory (majority rule) – the defendant is responsible for deaths caused by cofelons
proximate cause theory (minority rule) – the defendant is responsible for deaths caused by any person (e.g., cofelon, police, bystander)

Question 54

Conspiracy

Answer 54

the defendant entered an agreement to accomplish an unlawful purpose
the defendant had the specific intent to accomplish that purpose and
at least one coconspirator committed an overt act in furtherance of the conspiracy.

Question 55

False Pretenses

Answer 55

knowingly misrepresented a past or present material fact
did so with the specific intent to defraud and
thereby obtained title to (i.e., ownership of) another’s property.

Question 56

Solicitation

Answer 56

Solicitation is an inchoate crime that occurs when a person (1) entices, encourages, requests, or commands another to commit a crime (2) with the specific intent that the solicited crime be committed.

if the solicited crime is completed, then the solicitation merges into the completed target crime, thereby barring a conviction for both crimes.

Question 57

Mental State not provided/MPC

Answer 57

When a statute does not specify the requisite mental state, the minimum required mental state according to the MPC is recklessness—i.e., the conscious disregard of a substantial and unjustified risk that:

the material element exists or
the material element will result from the defendant’s conduct.

Question 58

Due process and Burden of Proof

Answer 58

Due process requires that the government prove every element of a criminal offense (e.g., criminal contempt ) beyond a reasonable doubt. This means that the burden of proof may not be placed upon a defendant to negate an element of the offense

Question 59

Exceptions to Plea negotiations

Answer 59

Federal Rule of Evidence (FRE) 410 bars evidence of the following in civil and criminal cases:
withdrawn guilty pleas
nolo contendere pleas
statements made during plea proceedings and
statements made during plea negotiations with the prosecution that did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.

However, exceptions exist for the latter two statements. Such statements are admissible if another statement from the same proceeding/discussion is introduced and the two statements should in fairness be considered together. They are also admissible if the current proceeding is for perjury or false statement and the statement was made under oath, on the record, and with counsel present

Question 60

Prior Inconsistent Statement and use of extrinsic evidence

Answer 60

a prior inconsistent statement may be used to impeach a witness on a material issue even when it is not admissible
substantively. A party may impeach the witness with the statement by:

examining the witness about the statement or
introducing the statement through extrinsic evidence if (1) the witness has an opportunity to explain or deny—and the opposing party has the opportunity to question the witness about—the statement or (2) justice so requires

Question 61

Statement against interest/criminal case/corroboration

Answer 61

The hearsay exception for a statement against interest requires corroborating circumstances when a statement exposing the declarant to criminal liability is offered in a criminal case. But for that exception to apply, the declarant must be unavailable

Question 62

adverse party introduction of record

Answer 62

A record may be read into evidence if it (1) concerns a matter that a witness once knew but cannot recall at trial, (2) was made or adopted by the witness when the matter was fresh in his/her mind, and (3) accurately reflects the witness’s personal knowledge at the time it was made. But only an adverse party may introduce the record as an exhibit.

Question 63

Recorded recollection; read into evidence

Answer 63

The hearsay exception for recorded recollections allows a record to be read into evidence if it:

concerns a matter that a witness once knew but cannot recall at trial
was made or adopted by the witness when the matter was fresh in his/her mind and
accurately reflects the witness’s personal knowledge at the time it was made.

Question 64

Attacking character for truthfulness

Answer 64

Federal Rule of Evidence (FRE) 608 provides the framework to attack or support a witness’s character for truthfulness through:
reputation or opinion testimony about the witness’s character for truthfulness or
specific instances of conduct (SICs)—i.e., convictions for felonies or crimes of dishonesty OR prior bad acts that relate to the witness’s character for truthfulness (Choice A).

A SIC that involves a conviction for a felony or crime of dishonesty can be introduced intrinsically (i.e., through the witness’s testimony) or extrinsically (i.e., from other sources). In contrast, a SIC involving a mere bad act may only be introduced intrinsically. As a result, when a witness denies a SIC involving a bad act on cross-examination, the examiner is stuck with the witness’s answer.

Question 65

Authentication of physical representations

Answer 65

when the evidence sought to be admitted is a physical representation of something that could not otherwise be seen
—e.g., an electrocardiogram or x-ray image (as seen here)—authentication requires proof that:

the process for creating the evidence was accurate
the machine that produced the evidence was working properly and
the operator of the machine was qualified to operate it

Question 66

Estoppel by deed

Answer 66

The doctrine of estoppel by deed (sometimes referred to as after-acquired title) provides that even if the grantor has no title to the land at the time the deed is delivered, the title automatically passes to the grantee when title is so acquired, provided that the grantor asserts the quality of title conveyed in the deed. In this case, the son conveyed to the friend by a warranty deed with no exceptions.

Question 67

Civil case and prior sexual relations

Answer 67

Evidence offered to prove (1) that a victim engaged in other sexual behavior or (2) a victim’s sexual predisposition is generally inadmissible in a civil proceeding involving sexual misconduct. This rule is designed to shield the alleged victim from the embarrassment associated with disclosure of such private information and to prevent the jury from relying on stereotypes during the fact-finding process.

However, such evidence may be admitted if the court determines, at an in camera hearing, that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party (Choice C). Therefore, in this civil sexual harassment suit, the court may admit evidence of the employee’s sexual relationship with her previous supervisor if it makes this determination

Question 68

Curative Admission

Answer 68

When inadmissible evidence (e.g., nonrelevant evidence) is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence (e.g., hearsay) for the purpose of rebuttal. This is known as a curative admission and is meant to remedy the prejudicial effect caused by the previously admitted evidence

Question 69

Preliminary Questioning

Answer 69

Under Federal Rule of Evidence 104, preliminary questions relating to the admissibility of evidence must be decided by the court. This includes questions regarding the admissibility of a confession in a criminal case. To decide these questions, the court may hold a hearing and receive testimony (as seen here).

When a criminal defendant testifies at such a hearing, the defendant is subject to cross-examination about the specific issue addressed at the hearing—here, the voluntariness of the defendant’s confession—and issues related to the defendant’s credibility. This allows the court to fully assess the issues and properly rule on the admissibility of the evidence.

However, the criminal defendant is not subject to cross-examination on other issues in the case (Choice C).* This allows the defendant to participate in the determination of preliminary questions—which often involve the defendant’s constitutional rights—without being subjected to cross-examination generally. Therefore, the prosecutor’s question regarding the defendant’s statement to his coworker is improper

Question 70

Federal nadvertent waiver rule

Answer 70

The federal inadvertent-waiver rule applies to (1) communications covered by the attorney-client privilege and (2) materials protected under the attorney work-product doctrine. Under this rule, disclosure of a communication protected by the attorney-client privilege or material that qualifies as attorney work product does not operate as a waiver in a federal or state proceeding if:

the disclosure was made in a federal proceeding or to a federal agency
the disclosure was inadvertent
the privilege holder had taken reasonable steps to prevent disclosure and
the privilege holder promptly took reasonable steps to rectify the error

Question 71

mercy rule

Answer 71

The mercy rule allows a criminal defendant to introduce evidence that his/her character is inconsistent with the crime charged—e.g., a defendant’s character for honesty is inconsistent with a charge of embezzlement. The defendant may introduce this evidence through:

reputation testimony – testimony by someone sufficiently familiar with the defendant’s reputation among associates or in the community or

opinion testimony – testimony sharing an opinion on the defendant’s character that is based on personal knowledge and familiarity with the defendant

Question 72

Juror competency

Answer 72

Federal Rule of Evidence (FRE) 606 addresses a juror’s competency as a witness during a posttrial inquiry into the validity of a verdict. Under that rule, a juror may not testify about: any statement made, or incident that occurred, during jury deliberations the effect of anything upon that juror’s or another juror’s vote or any juror’s mental process concerning the verdict.

However, there are exceptions to this rule. A juror may testify about whether (1) extraneous prejudicial information was improperly brought to the jury’s attention, (2) an outside influence was improperly brought to bear on a juror, or 3) a mistake was made in entering the verdict onto the verdict form.

Here, the plaintiff seeks to offer testimony as to the jurors’ mental processes concerning their award of damages by having jurors testify that they misunderstood the court’s instructions on the proper calculation of those damages. But since that testimony does not fall within any of the exceptions to FRE 606’s general prohibition of posttrial juror testimony, the jurors’ testimony is inadmissible.

Question 73

Prior criminal conviction timeline

Answer 73

Federal Rule of Evidence (FRE) 609 provides that a witness can be impeached with a prior criminal conviction. However, the standards for admission vary depending on:the age of the conviction
the type of conviction and
the witness against whom the conviction is offered.

When calculating the age of a conviction, the relevant inquiry is whether more than 10 years have passed since the witness’s conviction or release from confinement—whichever is later. A conviction for a crime involving dishonesty is automatically admissible to impeach any witness when the conviction—or the release from confinement—is not more than 10 years old. And extrinsic evidence of the conviction (e.g., a certified copy of the judgment) may be introduced for that purpose without first questioning the witness about the conviction

Question 74

Surface vs subsurface rights and severence

Answer 74

If the surface and mineral estates are owned by the same party, then the adverse possessor will acquire title to both estates—even if only one estate is actually possessed. But if the mineral estate has been severed from the surface estate (ie, the surface and mineral estates are owned by different parties), then the adverse possessor will only acquire title to the estate that is actually possessed. The mineral estate is actually possessed when the adverse possessor mines or drills wells on the land.

Question 75

Riparian doctrine

Answer 75

Under the riparian doctrine (favored in eastern states), water rights belong to the owners of the land that borders the watercourse (ie, riparians). A riparian may make any reasonable use of water that does not unreasonably interfere with downstream use, and domestic (“natural”) use of water trumps the commercial (“artificial”) use of i

Question 76

Forged document and Recording acts

Answer 76

Recording acts determine the priority of competing interests in the same land. In a race-notice jurisdiction (as seen here), a bona fide purchaser’s (BFP’s) subsequent property interest has priority over an earlier property interest if the BFP (1) lackednotice and (2) recorded first. But a BFP cannot rely on a forged or altered document to establish priority under the recording act since that document is void.

Question 77

Rule in Shelleys case

Answer 77

Under the common law, the Rule in Shelley’s Case applies when an instrument grants:

a freehold estate (eg, life estate) to a person and
a remainder to the same person’s heirs or the heirs of that person’s body.
When this occurs, that person is considered to hold the freehold estate AND the remainder, so the person’s heirs take nothing under the granting instrument. And under the doctrine of merger, if there is no intervening interest, the freehold estate and the remainder merge so that the person takes in fee simple absolute

Question 78

Restriction in a lease and who can enforce

Answer 78

However, the landlord can restrict the cotenants’ ability to transfer their rights under the lease with an express lease provision. In that case, only the landlord (the beneficiary of that provision) can enforce it—not another cotenant.

Question 79

Nonjudicial foreclosure proceedings

Answer 79

About half of all states permit nonjudicial foreclosure proceedings—ie, a privately conducted public sale of the mortgaged property (as in this case). The foreclosure sale generally destroys all interests that are junior to the mortgage being foreclosed. As a result, junior interest holders are necessary parties who must be given notice of the foreclosure so that they can participate (or send a representative). Failure to notify a junior interest holder results in the preservation of that party’s interest despite the foreclosure sale.

Nonjudicial foreclosures are allowed in most states if the mortgage or deed of trust contains a power-of-sale clause. However, the court can overturn the foreclosure if the auction or sales process violated due process or the purchase price was grossly inadequate

Question 80

Executory interest; shifting vs springing

Answer 80

An executory interest is a future interest in a grantee that generally cuts short, or divests, a prior estate upon the happening of a specified condition. There are two types of executory interests:

Shifting – divests an estate held by another grantee, such that the estate shifts from one grantee to another (the executory-interest holder)
Springing – divests an estate held by a grantor, such that the estate springs from the grantor to the executory-interest holder

Here, the grandson (grantee) has a future interest in the land because he is not entitled to immediate possession. Since his interest will cut short the daughter’s (other grantee’s) interest in the land if and when he graduates from college, the grandson has a shifting executory interes

Question 81

Caveat Emptor/ when there is no duty disclose or inspect

Answer 81

Under the common-law rule of caveat emptor, a seller had no duty to disclose property defects to the buyer. However, the majority of jurisdictions now require sellers of residential property to disclose material defects that are known to the seller and cannot be reasonably discovered by the buyer. A defect is material if it:
substantially affects the value of the residence
impacts the health or safety of a resident or
affects the desirability of the residence to the buyer.

The seller can disclaim the duty to disclose if (1) the disclaimer is clearly and specifically stated in the real estate contract and (2) the seller has not fraudulently misrepresented or concealed the condition of the property

Question 82

Easement by estoppel

Answer 82

An easement by estoppel is created through good-faith, reasonable, detrimental reliance on the servient-estate owner’s permission to make a limited use of his/her land

Question 83

Dying Declarations must pertain to DEATH

Answer 83

Another hearsay exception applies to dying declarations—ie, statements made under the belief of impending death that relates to the cause or circumstances of the declarant’s impending death. But here, the man’s statement concerned his estate—not the cause of the accident (Choice D). And since no other hearsay exclusion or exception is raised or applies here, the man’s hearsay statement is inadmissible

Question 84

Self Authenticating Documents

Answer 84

Tangible evidence must be authenticated before it can be admitted into evidence. This requires that the proponent produce extrinsic evidence—ie, evidence outside the document—to support a finding that the thing is what the proponent claims it to be. However, some tangible evidence is self-authenticating and therefore admissible without extrinsic evidence of authenticity. This includes:

trade inscriptions (eg, a can label) affixed in the course of business that indicate ownership 
official publications issued by a public authority (eg, a pamphlet issued by a state's highway department) (
printed materials purporting to be a newspaper or periodi

Question 85

nonhearsay use of prior statement

Answer 85

declarant-witness’s prior statement is nonhearsay if (1) the witness testifies and is subject to cross-examination about the statement and (2) the statement:

is inconsistent with the witness’s current testimony and was made under penalty of perjury
is consistent with the witness’s current testimony and offered to (1) rebut a charge of fabrication or improper influence or (2) rehabilitate the witness’s credibility or
identifies a person as someone the witness perceived earlier.

Question 86

Voluminous Summaries

Answer 86

summaries are admitted substantively in lieu of the underlying voluminous documents, the underlying documents (not the summary) must be admissible—eg, under the hearsay exception for business records

Question 87

Ancient Document

Answer 87

Documentary evidence, like other tangible evidence, must be authenticated before it can be admitted into evidence. This is commonly done by stipulation or eyewitness testimony. However, an “ancient document” or data compilation can also be authenticated by showing that it:

is at least 20 years old at the time it is offered
is in a condition that creates no suspicion about its authenticity and
was found in a place where it would likely be if it were authentic.

Question 88

Impeachment of a hearsay declarant vs a witness

Answer 88

A hearsay declarant need not be given an opportunity to explain or deny the offered impeachment evidence. In contrast, a witness can only be impeached with an inconsistent statement if the witness is given the opportunity to explain or deny—and the opposing party can question the witness about—the statement

Question 89

Then existing state of mind (fear question)

Answer 89

The rule against hearsay prohibits the admission of a statement made outside the present proceeding that is offered for the truth of the matter asserted therein unless an exception or exclusion applies. One hearsay exception permits admission of a statement concerning the declarant’s then-existing state of mind (eg, motive, intent, plan) OR emotional/physical condition (eg, mental feeling, pain, bodily health).

Question 90

Conversion = recover FMV at the time of conversion

Answer 90

Conversion occurs when a defendant refuses to return a chattel upon demand to a plaintiff entitled to its immediate possession, after which the plaintiff can recover the fair market value of the chattel at the time of the conversion.

Question 91

Example of Miranda violation requiring suppression

Answer 91

Here, a deputy tackled the woman and pinned her arms behind her back (custody). Another deputy demanded that she tell them what she did with the farmer (interrogation). Since the deputies did not inform the woman of her Miranda rights, she could not waive them. And since a deputy threatened her business and family unless she confessed (coercion), any waiver of her Miranda rights—including her right to silence—was involuntary. Therefore, the woman’s confession was taken in violation of the Fifth Amendment and should be suppressed..

Question 92

Solicitation and factual impossibility

Answer 92

Solicitation is an inchoate crime that occurs when a person:
entices, encourages, requests, or commands another to commit a crime (eg, requests another to act as an accomplice to larceny)
with the specific intent that the solicited crime be committed.

Solicitation is complete once these elements are met. This is true regardless of whether the solicited party agrees to commit the crime or takes any step toward doing so. As a result, factual impossibility—eg, the solicited party’s inability or lack of intent to commit the offense is not a defense.

Question 93

inferring an accomplice’s intent

Answer 93

An accomplice’s intent to aid the principal can be inferred when the accomplice (1) provides highly specialized goods or services, (2) receives unusually large profits from a sale, or (3) has some greater interest in the crime’s success. offense—is not a defense

Question 94

Accessory after the fact

Answer 94

An accessory after the fact (1) knows that the principal has committed a felony, (2) aids or assists the principal after the felony is complete, and (3) does so to help the principal avoid apprehension or conviction.

Question 95

burglary and intent

Answer 95

In this common law jurisdiction, burglary is the (1) unlawful breaking and entering of another’s dwelling at night (2) with the specific intentto commit afelony therein. The defendant must possess the requisite intent upon entering the dwelling but does not need to successfully complete the planned felony to be guilty of burglar

Question 96

mistake of fact

Answer 96

A mistake of fact is a defense to specific intent crimes (eg, burglary) when the defendant’s honest but mistaken belief—even if unreasonable—negates the requisite intent.

Question 97

DJ and not bringing all charges at once

Answer 97

Two crimes constitute the same offense when they have identical elements or when all the elements of one crime are included as elements in the other. However, double jeopardy does not require that all known charges against the defendant be brought in the same prosecution.

Question 98

attempted murder

Answer 98

The defendant failed to commit murder since it was factually impossible for him to kill an already-dead woman. But since he (1) intended to kill the woman and (2) committed an overt act in furtherance of that crime by pulling the trigger, the defendant is guilty of attempted murder.

Question 99

Exclusionary rule does not apply to grand jury proceedings

Question 100

Immunity and Document Production/5A

Answer 100

The Fifth Amendment privilege against self-incrimination protects suspects from being compelled to provide self-incriminating evidence that is testimonial or communicative in nature (ie, testimonial communications). For example, the compelled act of producing a document is privileged if that act would prove that:

the document exists
the suspect possesses the document or
the document is authentic (ie, was created or written by the suspect).
However, the contents of a document are not protected by this privilege since the suspect was not compelled to create that content (Choice A).

Here, the grand jury compelled the suspect to produce any diary when it issued a subpoena duces tecum. The grand jury believed that the suspect might have kept a diary, so the suspect’s act of production would prove that the diary exists, that he possesses it, and that it is authentic (self-incriminating evidence). As a result, the act of production is a privileged testimonial communication.

But the grand jury can still compel production of the diary over the suspect’s assertion of this privilege if the suspect is granted either:

use and derivative use immunity – prevents the government from using self-incriminating testimonial communications (and any evidence derived from them) against the suspect in any way that could lead to a criminal prosecution (eg, to obtain a grand jury indictment, at trial) or
transactional immunity – protects the suspect from being prosecuted for any crimes associated with self-incriminating testimonial communications

Question 101

Principal in the second degree

Answer 101

At common law, a person who (1) aided or encouraged a principal in the commission of a crime and (2) was present at the crime is classified as a principal in the second degree. This designation is significant because a principal in the second degree is liable for the offense to the same extent as the principal—even if the principal is not convicted.

Question 102

Embezzlement vs fraudulent conversion

Answer 102

Embezzlement is the fraudulent conversion of the property of another by a person who is in lawful possession of that property—typically pursuant to a trust agreement. Conversion is the inappropriate use of property that substantially interferes with the owner’s right to the property. This occurs when the defendant treats the property as his/her own or uses it for his/her own purposes.

Question 103

MPC Insanity

Answer 103

The jury could find the woman to be legally insane under the ALI Model Penal Code test, because she could not conform her conduct to the requirements of the law.

Question 104

Defamation vs invasion of privacy

Answer 104

DOESNT MATTER if it true and concerned matters of public interest for invasion of privacy

Question 105

Congress and Original vs Appellate jurisdiction of SCOTUS

Answer 105

Article III gives Congress the power to make exceptions to and regulations of the appellate jurisdiction of the U.S. Supreme Court, but the Supreme Court has ruled that Congress cannot give the Court original jurisdiction over cases other than those provided for in Article III.

Question 106

Warranty of Merchantability is implied under the UUC

Answer 106

Under UCC § 2-314, a warranty of merchantability is implied in every contract for the sale of a good by a seller who is a merchant with respect to goods of that kind.

Question 107

Defamation and communication to third party

Answer 107

The core of a defamation action is the communication of a defamatory statement about the plaintiff to a third party. Here, the statement was spoken rather than written, so the rules of slander apply. Often an action in slander requires that pecuniary loss be shown, but there is no such requirement where the statement accuses the plaintiff of engaging in serious criminal conduct. Arson is a crime of moral turpitude, so the neighbor’s statement falls within the exception, and special harm need not be shown.

Question 108

Warrant but no one is home

Answer 108

Under the Fourth Amendment, the arrest warrant would have authorized forcible entry only if the officers had reason to believe that the woman was at home at the time of the entry. Here, the officers knew that the woman was not at home

Question 109

SOF and 500 requirement

Answer 109

Under that section, a contract for the sale of goods for a price of $500 or more is not enforceable unless there is a writing indicating a contract of sale that is signed by the party against whom enforcement is sought. In this case, the absence of such a writing signed by the jewelry maker renders the parties’ oral agreement unenforceable. An exception to the writing requirement arises when a seller delivers goods that are accepted by the buyer, but in this case, the jewelry maker did not accept the gold.

Question 110

Rule 408 and need for disputed claim

Answer 110

n out-of-court statement by a party that is relevant to his or her liability is admissible under the exception to the hearsay rule for statements of a party-opponent. One might think that the statement would be excluded because of Rule 408, which excludes statements that are made to settle a claim. But that rule is inapplicable, because it applies only when the statement is made to compromise a disputed claim. Here, at the time the defendant made the statement, he was not contesting that he was at fault. Therefore, there was no disputed claim.

Question 111

Right to exclude witnesses from the courtroom

Answer 111

Rule 615 provides that if a party moves to exclude prospective witnesses before they testify, “the court must order witnesses excluded so they cannot hear other witnesses’ testimony.”

Question 112

Premature Summary Judgments are okay

Answer 112

The fact that a summary judgment motion is filed before the close of discovery does not require the court to deny it. Under Rule 56(b), a party may file the motion at any time until 30 days after the close of all discovery. The problem here is that the employer filed the motion before discovery commenced, thus providing the mechanic an argument to defer action or deny the motion under Rule 56(d).

Question 113

Merger clause vs explaining the terms of an agreement

Answer 113

Under the UCC’s parol evidence rule, a merger clause does not conclusively establish that an agreement is completely integrated. Moreover, a finding that an agreement is completely integrated does not necessarily bar the admission of extrinsic evidence. Although extrinsic evidence is inadmissible to supplement or contradict the express terms of a completely integrated agreement, such evidence is admissible to explain the terms of an agreement. In this case, evidence of the parties’ discussions during their negotiations is admissible to aid in explaining what amount they intended for the trade-in and whether they intended “trade-in allowance” to include an assignment of the buyer’s claim against her insurance company.

Question 114

Estoppel by Deed

Answer 114

The doctrine of estoppel by deed (sometimes referred to as after-acquired title) provides that even if the grantor has no title to the land at the time the deed is delivered, the title automatically passes to the grantee when title is so acquired, provided that the grantor asserts the quality of title conveyed in the deed. In this case, the son conveyed to the friend by a warranty deed with no exceptions.

Question 115

As is disclaimer

Answer 115

A seller may disclaim any duty to disclose defects if the disclaimer is sufficiently clear and specific. In this case, the contract specifically noted that the house was being sold “as is.” The woman made no misrepresentations regarding the condition of the house. There are no statutes that might require an owner-occupier to disclose known defects, and in any case the woman inherited the house and had never visited or lived in it. In addition, this is not the sale of a new house by a builder/seller, which may impose a warranty of habitability

Question 116

When ademption doesn’t apply

Answer 116

The woman (testator) specifically devised her farm to the nephew (devisee). She later sold that farm and used the proceeds to purchase a home. But the nephew is not entitled to that home because of the doctrine of ademption, which causes a devise to fail in two circumstances:

Ademption by extinction – when the specifically devised asset is not owned by the testator (or is destroyed or fundamentally changed) at the time of death (as seen here)
Ademption by satisfaction – when the devisee received the devised asset (or some other asset intended to satisfy the devise) during the testator’s life (not applicable here)
As a result, the devisee takes nothing unless the will expressly states otherwise. So, when a specifically devised asset (eg, the farm) is sold during the testator’s lifetime, the sale proceeds—and any assets later acquired with those proceeds (eg, the home)—become part of the general estate. The general estate is then distributed in accordance with the remainder of the will. And since the woman’s will bequeathed the residue of her estate to the niece, the niece owns the home as the residuary legatee(Choice A).

Question 117

Title Insurance Policies

Answer 117

both owner’s and lender’s title insurance policies protect insureds—named persons covered by the policy—from undisclosed title defects by requiring the insurer to indemnify (ie, compensate) the insureds for any resulting losses. This means that an insurer is only responsible for title defects that:

are not disclosed in the insurance policy (the county tax lien) and
affect the named insureds (the woman).
Therefore, the insurance company is not obligated to pay the friend’s claim since she was not named in the insurance policy

Question 118

tortfeasors acting in concert

Answer 118

Tort claims for personal injury generally require proof that the defendant’s tortious conduct actually and proximately caused the plaintiff’s harm. However, when two or more tortfeasors act pursuant to a common plan or design (ie, act in concert) AND one or more of them cause the plaintiff’s harm, all of the tortfeasors are jointly and severally liable for 100% of the harm

Question 119

Rescinding a contract oral is FINE

Answer 119

The statute of frauds requires a writing to create or modify an enforceable contract for the sale of land, but a writing is not required to rescind (ie, cancel) the contract. Therefore, the buyer and the seller’s oral agreement to rescind the contract was valid

Question 120

Adverse Possessors becoming tenants in common

Answer 120

When land is adversely possessed by two or more persons, the possessors acquire a concurrent ownership interest as tenants in common. Since a tenancy in common has no right of survivorship, a co-tenant’s ownership interest will pass to his/her heirs if the co-tenant dies intestate

Question 121

Due process and making a defendant prove his defense

Answer 121

Due process seeks to prevent wrongful convictions by requiring the government to prove every element of a criminal offense beyond a reasonable doubt (a high evidentiary burden). However, a legislature can place any burden of proof on the defendant to establish an affirmative defense—an assertion that, if proven, will justify or excuse a criminal defendant’s actions and defeat the prosecution’s claim (Choice C).

Here, the trial court instructed the jury that the defendant had the burden of proving that he acted in self-defense by a preponderance of the evidence. Since self-defense is an affirmative defense—not an element of the charged crime (murder)—this instruction placed a proper burden of proof on the defendant and did not violate due process.

Question 122

Prepayment prohibitions or penalties and mortages

Answer 122

Under the common law “perfect tender in time” rule, a mortgagor (debtor) has no right to prepay a mortgage debt unless the mortgage documents provide otherwise. However, the prevailing modern trend reverses this presumption and allows prepayment unless the mortgage documents provide otherwise.

Prepayment prohibitions or penalties contained in a mortgage are generally valid and enforceable.* They do not violate public policy because they serve the beneficial purpose of:

allowing the mortgagee to maintain the financial yield intended under the mortgage agreement and
compensating the mortgagee for any losses suffered because of a prepayment

Question 123

Ineffective Assistance of Counsel

Answer 123

Criminal defendants can challenge their convictions directly (eg, appeal) and/or indirectly (eg, postconviction relief). The most common claim in a postconviction-relief proceeding is that the defendant had ineffective assistance of counsel at trial. Under the Sixth Amendment, all criminal defendants have the right to effective assistance of counsel. To protect that right, a defendant can have his/her conviction overturned by showing:

deficient performance – the attorney’s representation fell below an objective professional standard of reasonableness and
prejudice – there is a reasonable probability that, but for that deficiency, the trial’s outcome would have been different.

An attorney representing a defendant charged with a capital offense has a duty to conduct a reasonable investigation to determine if there are mitigating facts for the penalty phase that may lead to a different sentencing outcome. As a result, failure to investigate such facts constitutes deficient performance

Question 124

Contract reformation as a remedy

Answer 124

A written contract that fails to accurately express the parties’ initial intent due to a mistake of both parties may be reformed (at a party’s request) to correct such a mistake when:
the parties had a prior agreement (either oral or written)
the parties put that prior agreement into writingand
the parties’ mistake caused a difference between the prior agreement and the written agreement

Question 125

Misdemeanors and Involuntary Manslaughter

Answer 125

A malum prohibitum misdemeanor—ie, one that is not inherently wrong but is prohibited by statute—is an unlawful act that can serve as a basis for involuntary manslaughter if it is committed willfully or constitutes criminal negligence.

Question 126

YOU CAN STIPULATE TO LESS THAN 6 JURORS AND A NON UNANIMOUS JURY VERDICT

Answer 126

m

Question 127

State Action

Answer 127

Constitutional requirements (excluding the Thirteenth Amendment) only apply to government conduct. But under the state-action doctrine, a private actor is considered a government actor—and bound by the Constitution—when:

the private actor performs a traditional and exclusive government function (eg, eminent domain) or

the government is significantly involved in the private actor’s activities, which requires more than funding, licensing, regulating, or granting a franchise.

Therefore, the resident can challenge the private company’s decision to terminate his water service on procedural due process grounds only if the state-action doctrine applies.

Here, the company does not perform a traditional and exclusive government function because residential water service has historically been undertaken by private entities. And though the city council granted a non-exclusive franchise to the company to supply water to city residents, granting a franchise is insufficient to convert private conduct into state action (Choice D). As a result, the company is not a state actor for purposes of the Fourteenth Amendment, and the court should dismiss the resident’s action.

Question 128

Motion vs Notice of Dismissal

Answer 128

FRCP 41 allows a plaintiff to voluntarily dismiss a suit for any reason. A voluntary dismissal is generally without prejudice, which allows the plaintiff to sue the defendant again on the same claim in the future. A voluntary dismissal without a court order is permitted when:

all the parties who have appeared in the action sign a stipulation of dismissalor

the plaintiff unilaterally files a notice of dismissal before the defendant serves an answer or a motion for summary judgment.

If neither of these occur, then the only way that the plaintiff can voluntarily dismiss a suit is with a court order. This can be obtained when the plaintiff files a motion to dismiss the case without prejudice.

Here, the woman wants to dismiss her action against the doctor and the hospital, with the intent to refile it later. The woman cannot voluntarily dismiss the action by obtaining a stipulation of dismissal from only the doctor because both defendants need to sign it (Choice C). The woman also cannot voluntarily dismiss the action by filing a notice of dismissal because both defendants have answered (Choice B)

Question 129

An engineering firm submitted a bid to a municipality for the construction of a new wastewater treatment plant. The firm’s bid included a subcontractor’s bid to complete the electrical work on the plant for $100,000.

The municipality awarded the construction contract to the firm. Later that day, before the firm told the subcontractor of the award, the subcontractor told the firm that it was withdrawing its bid because it had recently undertaken a new project that would absorb all its capacity for the next 18 months. The firm nevertheless accepted the subcontractor’s bid and demanded that it perform the electrical work on the plant, but the subcontractor refused. The firm had to hire another subcontractor to perform the electrical work, at a cost of $115,000. The firm completed the construction of the plant at a profit.

Which of the following statements correctly describes the firm’s legal rights, if any, against the first subcontractor?

Answer 129

Under the doctrine of promissory estoppel (ie, detrimental reliance), an offer is binding as an option contract and an offer is irrevocable for a reasonable period of time if:

the offerorreasonably expected to induce reliance on the offer before acceptance
the offereereasonably relied on the offer and
that reliance caused the offeree to suffer substantial detriment.
An attempted revocation of such an irrevocable offer before a reasonable period of time has passed is ineffective, and the offeree can still accept the offer. Once the offeree does so, a valid, enforceable contract is formed. If the offeror then breaches the contract by refusing to perform, the offeree is entitled to recover expectation damages.

Here, the first subcontractor should have reasonably expected the engineering firm to rely on its bid in the firm’s bid for the project, and the firm reasonably did so. This reliance then caused the firm to suffer substantial detriment when the first subcontractor attempted to revoke its bid after the firm was awarded the construction contract. As a result, the first subcontractor’s bid was irrevocable for a reasonable time, and the firm timely accepted it (Choice D). And since the first subcontractor refused to perform, the firm is entitled to recover expectation damages.

(Choice A) Although the firm completed the construction at a profit, it was expecting to make an even bigger profit because it would have paid the first subcontractor $100,000 but instead had to pay the second subcontractor $115,000. Therefore, the firm is entitled to recover expectation damages—not mere nominal damages.

(Choice B) Reliance damages are typically awarded under the doctrine of promissory estoppel when there is no valid contract. But since a valid contract was formed once the firm accepted the first subcontractor’s bid, the firm can recover expectation damages.

Question 130

Authentication of Physical Objects

Answer 130

Physical objects (eg, mail, receipts, clothing) must be authenticated before they can be admitted at trial. Authentication requires a prima facie showing that the object is what the proponentclaims it to be. This is most often accomplished by testimony of someone with personal knowledge of the object (eg, the officer who found the items), which comes from firsthand observations or experiences. Therefore, this is the standard the court should use in determining whether the items have been properly authenticated.

Question 131

At the close of a two-week federal jury trial, the court asked the parties to submit proposed jury instructions. The court selected some of the proposed instructions, reformulated others, and charged the jury accordingly. The parties made no objections. The jury returned a verdict for the plaintiff, and the court entered judgment on the verdict.

The defendant appealed, arguing that several of the court’s instructions were plain error.

What is the plaintiff’s best argument in response?

Answer 131

To challenge an error in jury instructions on appeal (ie, to preserve error), a party generally must object at trial. If a party fails to do so, the challenged error can only be reviewed for plain error. Under a plain-error review, an appeal will be heard if the appellant shows that an obvious error affected a substantial right and the fairness of judicial proceedings.

Here, the defendant challenged several of the court’s jury instructions on appeal by arguing they were plain error. Since the defendant failed to object to these instructions at trial, the defendant’s appeal will only be heard if the defendant shows that an obvious error affected the defendant’s substantial rights. Therefore, the plaintiff’s best argument in response to the defendant’s appeal is that any errors in the instructions did not affect the defendant’s substantial rights.

(Choice B) There is no requirement that a party file a motion for a new trial before challenging jury instructions on appeal. Therefore, the defendant did not waive the appeal by failing to first move for a new trial.

(Choice C) A district court does have discretion as to what instructions to give and can generally be reversed on appeal only for abuse of discretion. But the plaintiff’s best argument is that the defendant’s appeal of the erroneous jury instructions cannot be heard because they did not affect the defendant’s substantial rights.

(Choice D) Although the defendant failed to object to the errors at trial, plain-error review would allow the appeal if the errors constituted plain error. Therefore, the plaintiff must argue that the errors did not affect the defendant’s substantial rights

Question 132

A defendant has been charged with selling cocaine. On the night of the alleged sale, a police officer arrested a woman and found a large package of cocaine in her car. The woman was brought to the police station for questioning. During her interrogation, she admitted to a police officer that she had sold cocaine and said that she had obtained the cocaine from the defendant, who was a local supplier.

By the time of the defendant’s trial, the woman has left the country. The prosecutor calls the police officer to testify that the woman told him that the defendant was her cocaine supplier. The defendant’s attorney objects.

Is the woman’s statement to the police officer admissible to prove that the defendant sold cocaine

Answer 132

THIS IS HEARSAY SO IT DOESNT MATTER THEY DIDNT DO MORE TO PROCUR HER ATTENDANCE

Question 133

State authorities received information that a man had been making threats against his ex-wife. To determine whether the man was serious, an undercover officer introduced himself to the man at a bar. The officer said that he had previously taken care of problems for angry spouses. After some discussion in which the man expressed his extreme anger at his ex-wife, the man offered the officer $5,000 to kill her. The officer agreed and made arrangements to meet the man at the bar the next day to collect the $5,000 payment. When the man showed up the next day at the bar, authorities immediately arrested him.

The jurisdiction defines attempt, solicitation, and misprision of a felony as at common law, and also punishes bilateral conspiracies. The crimes below are listed in descending order of seriousness.

What is the most serious crime of which the man can properly be convicted?

Answer 133

At common law (and in most jurisdictions), solicitation is an inchoate offense that requires proof that the defendant:

enticed, encouraged, or commanded another to commit a crime (eg, murder)
with the specific intent that the person commit that crime.
Here, the man encouraged the undercover officer to commit a crime, and specifically intended that the officer do so, when the man offered the officer $5,000 to kill his ex-wife. Therefore, the man can be properly convicted of solicitation of murder.

(Choice A) Attempt occurs when a defendant has the specific intent to commit a crime, commits an overt act in furtherance of that crime, but does not complete it. Under the common-law dangerous-proximity test, an overt act occurs when it brings the defendant in dangerous proximity to completing the target offense. Therefore, the man’s mere offer to pay the undercover officer to kill the ex-wife did not amount to an overt act.

(Choice B) Conspiracy occurs when two or more persons enter an agreement with the specific intent to commit a crime. The common-law bilateral theory of conspiracy requires proof of at least two guilty minds—the defendant and one other conspirator. Therefore, a defendant cannot be convicted when the only other conspirator feigns agreement (as seen here).

Question 134

A day before the applicable statutory limitations period expired, a worker filed a federal diversity action for defamation against her former employer, alleging that the employer had falsely and publicly accused her of stealing trade secrets. In describing the events that led to the false accusations, the complaint quoted a statement of a competitor made to the employer about the worker’s alleged theft.

During discovery, the worker deposed the competitor. One week after discovery closed, the worker moved to amend the complaint to add the competitor as a defendant. The competitor opposed the motion on the ground that the statutory limitations period had expired. Is the court likely to grant the motion?

Answer 134

An amended complaint filed after the statute of limitations has expired is prohibited unless the relation-back doctrine applies. This doctrine treats the amended complaint as if it were filed on the same date as the original complaint. But an amendment that changes or adds a party “relates back” only if the statute of limitations allows (not seen here) OR when:

the amendment concerns the same transaction or occurrence as the original complaint

the new party received notice of the suit within 90 days after the original complaint was filed and

the new party knew or should have known that the suit would have been brought against it but for a mistake concerning the proper party’s identity.

Here, the allegations against the competitor arise out of the same factual circumstances as the complaint, and the competitor received notice of the suit through the deposition. But the worker’s failure to name the competitor in the complaint was not due to mistaken identity because the complaint quoted the competitor. As a result, the amendment does not relate back to the date the complaint was filed and thus would be futile (Choice D). Accordingly, the court is unlikely to grant the worker’s motion

Question 135

Punitive Damages

Answer 135

Punitive damages are money damages awarded to punish the defendant for outrageous, malicious, or evil conduct and to deter the defendant and others from engaging in similar conduct in the future. Punitive damages are only available for torts involving willful or wanton misconduct (ie, intentional or reckless torts). A plaintiff cannot recover punitive damages for negligent conduct because these damages are designed to punish and deter outrageous, malicious, or evil conduct—not mere unreasonable conduct.

Question 136

Members of a political organization protested against US foreign policy by blocking the entrance to a military base. After several members were arrested, the organization’s leader called for “even bigger demonstrations next week to halt operations at the base.”

The US Attorney in the jurisdiction brought a federal civil action against the organization and its leader, seeking an injunction against protests that interfered with the base’s operations. With the complaint, the US Attorney moved for a temporary restraining order (TRO) to “enjoin any blockade of the base’s entrance or other disruption of base activity until the court can hear motions for a preliminary and a permanent injunction.” The US Attorney attached an affidavit certifying the unsuccessful efforts she had made to locate the organization and its leader and to notify them of the motion. The court immediately held a hearing and issued the TRO in a one-sentence order that did not describe the acts to be restrained but instead incorporated by reference the allegations of the complaint and the TRO motion.

Did the court properly grant the TRO?

Answer 136

A temporary restraining order (TRO) is a court order that commands a party to do or stop doing a specified action for 14 days or until a preliminary-injunction hearing can take place, whichever occurs first. All TROs must contain the following:

The reasons why it was granted

A reasonable description of the prohibited or commanded acts, which must be made without reference to the complaint or another document

The specific terms (eg, persons bound, penalties for noncompliance

Question 137

Contract Reformation

Answer 137

A court can reform (at a party’s request) a written contract that fails to accurately express the parties’ initial intent due to a mistake by both parties when:

the parties had a prior agreement (either oral or written)
the parties put that prior agreement into writingand
the parties’ mistake caused a difference between the prior agreement and the written agreement.
Here, the parties previously agreed that the price owed under the contract would increase by the amount that the cost of lumber for the job exceeded the then-current cost of $30 per 100 board feet. The parties inadvertently failed to include this provision in their written contract, which caused a difference between the agreement

Question 138

A passenger domiciled in State A has brought a federal diversity action in State A against a railroad, seeking damages for injuries suffered when the railroad’s train, which the passenger boarded in State A, derailed in State B. The railroad is incorporated and has its principal place of business in State B and operates in States A and B. Several other passengers were also injured and have brought individual actions in State B federal court.

The railroad has moved the State A federal court to transfer the action to the State B federal district court. State B has only one federal district.

What is the railroad’s best argument in support of the motion?

Answer 138

A district court with proper venue can transfer venue for the convenience of parties and witnesses, and in the interest of justice, to any judicial district (1) where the suit could have been originally brought or (2) to which all parties have consented. Venue is proper in any district where:

any defendant resides, if all defendants reside in the same state
a substantial part of the events that gave rise to the suit occurred (or a substantial part of the property that is the subject of the suit is located) or
any defendant is subject to the court’s personal jurisdiction (if neither of the above provisions applies).
Here, the passenger sued the railroad in State A, and the railroad moved to transfer venue to State B. A substantial part of the events giving rise to the suit occurred in State A (where the passenger boarded and first rode the train) and State B (where the accident occurred). As a result, venue is proper in both states (Choice D). But since the accident occurred in State B and many witnesses are located there, it is likely the most convenient venue for the parties and witnesses. Therefore, this is the railroad’s best argument to support its motion.

(Choice B) Whether an action involves common questions of fact with similar actions is relevant to a court’s certification of a class action—not its determination to transfer venue.

(Choice C) The suit could have been brought in State B because that is where the railroad is incorporated and has its principal place of business—and therefore resides. But to best support its motion to transfer venue to State B, the railroad should argue that State B is the most convenient venue for the parties and witnesses since the accident occurred and the witnesses are located there

Question 139

A woman executed and delivered to her unmarried nephew a warranty deed conveying her home to him “on the date of his marriage.” The nephew promptly recorded the deed.

Several years later, when the nephew was still unmarried, the woman died testate, leaving her entire estate to her sister.

The executor of the woman’s estate has asserted that the nephew has no interest in the home.

Is the executor correct?

Answer 139

A defeasible fee simple estate is an ownership interest that may last for an indeterminate duration but is limited by specific durational or conditional language (see table above). There are three types of defeasible fees:

Fee simple determinable (FSD) – terminates automatically upon the happening of the stated event, then ownership returns to the grantor

Fee simple subject to a condition subsequent (FSSCS) – upon the occurrence of a specific condition, the grantor has the right to terminate the estate

Fee simple subject to an executory limitation (FSSEL) – upon the occurrence of the stated event or condition, title passes to a third party (ie, someone other than the grantor or the holder of the present fee)

The future interest held by a third party that follows an FSSEL is called an executory interest. There are two types of executory interests:

Shifting – divests the grantee’s estate, such that the estate shifts from the grantee to the executory-interest holder

Springing – divests the grantor’s estate, such that the estate springs from the grantor to the executory-interest holder

Here, the woman (grantor) conveyed her home to her unmarried nephew “on the date of his marriage.” Since title will pass to the nephew (third party) upon the occurrence of this condition, the woman held an FSSEL and the nephew acquired a springing executory interest. The woman’s FSSEL passed to her estate upon her death, but this did not impact the nephew. He still holds an executory interest that will vest as a fee simple absolute (FSA) if he marries. If he dies unmarried, then the woman’s estate will swell into an FSA (Choices C & D).

Question 140

A plaintiff filed a federal diversity action against a corporate defendant and the same day mailed to the defendant’s managing agent a notice of the complaint and two copies of a request to waive service. Sixty-one days later, after the defendant had failed to return the signed waiver request, answer, or otherwise plead, the plaintiff moved for entry of default and a default judgment. The plaintiff did not file proof of service.

Assume that any relevant state service law is the same as federal law.

Is the court likely to grant the motion?

Answer 140

A plaintiff must provide the defendant with adequate notice of a lawsuit through service of process—ie, delivering a copy of the summons and complaint. This process can be expensive and burdensome, so defendants are encouraged—but not required—to waive service of process upon the plaintiff’s written request.

If the defendant does not waive service (as seen here), then the plaintiff must effect proper service of process before the defendant must respond to the complaint. But here, the plaintiff took no action to serve the defendant with process, so the defendant was not required to respond. Therefore, the court will likely deny the plaintiff’s motion for entry of default and a default judgment.

Question 141

Implied in Fact Contract

Answer 141

An implied-in-fact contract arises when a party’s assent to enter a contract is inferred from the party’s conduct or failure to act. This inference arises when a party (1) intentionally engages or fails to engage in conduct and (2) knows or has reason to know that the conduct or inaction may cause the other party to understand that the party assents. And since an implied-in-fact contract can be established by conduct alone and does not require a writing (Choice A), the court’s instruction to the jury was correct.

Question 142

Tortious Interference to Contract

Answer 142

A court should deny a defendant’s motion for summary judgment when the evidence is legally sufficient for a reasonable jury to find in the plaintiff’s favor. A claim for intentional (ie, tortious) interference with a contract requires evidence that:

a valid contract existed between the plaintiff and a third party
the defendant knew of that contractual relationship
the defendant intentionally and improperly interfered with the contract’s performance and
that interference caused the plaintiff pecuniary (ie, monetary) loss.
Here, the established cemetery (plaintiff) had contracts with purchasers (third parties) for funeral plans, and the former employee (defendant) knew of those contracts. Several purchasers canceled their plans after the former employee intentionally misrepresented state law by telling them that they could cancel their plans without penalty. As a result, a jury could find that the former employee intentionally and improperly interfered with the established cemetery’s contracts. Therefore, the court should deny the former employee’s motion for summary judgment.

Question 143

A plaintiff domiciled in State A brought a federal diversity negligence action in State A against a defendant domiciled in State B. The action was based on an accident that had occurred in State C. The defendant was personally served with process at her office in State B, which is located 50 miles from the State A federal courthouse. The defendant travels to State A once each year for a weeklong vacation but has no other State A contacts.

The defendant answered, denying all allegations. One week later, the defendant filed an amended answer, denying all allegations and including the defense of lack of personal jurisdiction. State A has a long-arm statute that permits personal jurisdiction to the constitutional limit.

The defendant has moved for an order dismissing the action based on the personal-jurisdiction challenge asserted in the amended answer.

Should the court issue the order?

Answer 143

court must have personal jurisdiction to hear a case. Personal jurisdiction can be established through general jurisdiction, which provides all-purpose jurisdiction in the state where the defendant is domiciled, OR specific jurisdiction, which provides case-linked jurisdiction.* Specific jurisdiction requires that:

the plaintiff’s claim arise from or be closely related to the defendant’s minimum contacts with the forum state such that the defendant could reasonably anticipate being sued there and

the exercise of jurisdiction comply with notions of fair play and substantial justice.

Here, the State A federal court lacks general jurisdiction over the defendant because she is domiciled in State B. The court also does not have specific jurisdiction because the defendant lacks minimum contacts with State A such that she could reasonably anticipate being sued there. That is because the plaintiff’s claim arises from and relates to the defendant’s contacts with State C (where the accident occurred)—not her contact with State A (where she vacations each year for a week). Therefore, the court should issue the order dismissing the action.

*Personal jurisdiction can also be established through the defendant’s consent or the defendant being served with process in the forum state—neither of which is seen here.

(Choice A) A challenge to personal jurisdiction is waived if not made in (1) the original answer or (2) an answer amended without the court’s permission within 21 days after the original answer was served. Here, the defendant did not waive her personal-jurisdiction challenge because it was included in her amended answer, which was served seven days after the original answer

Question 144

A plaintiff who lives near a factory has sued the company that owns it, alleging that a toxin released from the factory caused the plaintiff to suffer a respiratory disease. The company contends that only a small amount of the toxin was released for a brief period, and that in any event the toxin is not known to cause any respiratory disease. The plaintiff has not disputed the minimal amount and brief length of the exposure.

At trial, the plaintiff seeks to call an expert who will testify that in her opinion the toxin released from the factory caused the plaintiff’s respiratory disease. The company has objected to the admission of the expert’s testimony.

At a pretrial hearing to determine the admissibility of the expert’s testimony, the expert testified that she based her opinion on several studies provided by the plaintiff’s attorney about another substance that is similar to the toxin at issue. These studies show that prolonged exposure to high doses of the similar substance can cause the respiratory disease that the plaintiff suffers from. On cross-examination, the company’s attorney elicits from the expert an admission that she did not consider, in forming her opinion, two recent clinical studies, both of which concluded that there was no connection between the toxin at issue and any respiratory disease.

Should the court allow the plaintiff’s expert to testify at trial?

Answer 144

An expert witness is one who possesses specialized knowledge, skill, experience, education, or training in a subject that pertains to an issue in litigation. Expert witness testimony is admissible if it is both:

relevant – the testimony will help the trier of fact (1) understand the evidence OR (2) determine a fact in issue and

reliable – the testimony is (1) based on sufficient facts or data AND (2) the product of reliable principles and methods that the expert reliably applied to the facts of the case.

A party seeking to admit expert testimony must prove that the testimony is reliable by a preponderance of the evidence. Reliability is a preliminary question for the court to determine, not a question of weight for the jury

Question 145

A plaintiff, a citizen of State A, sued a defendant, a citizen of State B, in a state court in State B. The complaint asserted a $120,000 claim under state law.

Fifty days after service of the complaint, the plaintiff amended the complaint, adding a second defendant, a citizen of State C. The amended complaint asserted the $120,000 state-law claim and a related federal-law claim against both defendants. Twenty-five days after service of the amended complaint, the second defendant removed the action to a federal court in State B with the first defendant’s consent.

Was removal proper

Answer 145

A defendant can remove a case from state to federal court if the suit falls within the federal court’s original subject-matter jurisdiction, which can arise from either:

diversity jurisdiction – when the amount in controversy exceeds $75,000 and the opposing parties are citizens of different states (ie, are diverse) or

federal-question jurisdiction – when a claim arises under the U.S. Constitution, a treaty, or federal law.

Diversity jurisdiction seeks to protect out-of-state defendants from potential bias in state courts., but in-state defendants do not face the same risk of bias. As a result, the forum-defendant rule (ie, home-court advantage rule) prohibits removal when (1) subject-matter jurisdiction arises solely from diversity jurisdiction and (2) a defendant is a citizen of the state in which the case was filed. However, this rule does not apply—and removal is proper—when subject-matter jurisdiction also arises from federal question jurisdiction.

Here, diversity jurisdiction exists because the amount in controversy is $120,000 and the plaintiff (State A) and the defendants (States B and C) are diverse (Choice D). But since the first defendant is a citizen of State B—where the suit was filed—the forum-defendant rule prohibits removal solely on the basis of diversity jurisdiction (Choice A). However, federal-question jurisdiction also exists because the complaint was amended to assert a federal-law claim. Therefore, the forum-defendant rule does not apply, and removal was proper.

(Choice B) A defendant has 30 days from service of the summons or the receipt of a complaint that sets forth a removable case to file a notice of removal. Here, the case became removable when the plaintiff amended the complaint to assert a claim under federal law. Therefore, the second defendant timely filed the notice of removal 25 days after being served with the amended complain

Question 146

The federal inadvertent-waiver rule

Answer 146

The federal inadvertent-waiver rule applies to (1) communications covered by the attorney-client privilege and (2) information protected under the attorney work-product doctrine. Under this rule, the disclosure of such communications or information does not waive the attorney-client privilege or work-product protection in a federal or state proceeding if:

the disclosure was made in a federal proceeding or to a federal agency
the disclosure was inadvertent
the privilege holder took reasonable steps to prevent disclosureand
the privilege holder promptly took reasonable steps to rectify the error.
Here, the manufacturer inadvertently turned over two documents reflecting attorney-client communications between the manufacturer’s president and its counsel. That disclosure was made in a federal action, and the manufacturer had presumably taken reasonable steps to prevent it. However, the manufacturer learned of the disclosure during discovery and waited until the day before trial to seek return of the documents. This failure to promptly take reasonable steps to rectify the error waived the attorney-client privilege as to the two documents (Choice A).

However, such a waiver does not extend to an undisclosed communication or information (eg, the other 23 documents) unless:

the waiver was intentional
the disclosed and undisclosed communications or information concern the same subject matterand
the communications or information ought, in fairness, to be considered together.
Since the manufacturer’s disclosure of the two documents was inadvertent, the waiver of the attorney-client privilege as to those documents does not extend to the other 23 documents—even though they all relate to the same subject matter (Choice C). Therefore, the court should deny the woman’s claim.