Missed MBE Questions J24 Flashcards
Non-character purposes for admitting crime or bad acts
Evidence
MIMIC
Motive
Intent
absense of Mistake
Identity
Common scheme or plan
Other (knowledge, opportunity, conciousness of guilt)
Evidence of an organization’s routine business practice
Evidence
Admissible to prove that they acted in accordance with that practice on a particular occasion
Mx for summary judgment
Civ Pro
Request that a court enter a judgment without a full trial. Movant must show:
- no genuine dispute of material fact
- the evidence is legally insufficient for a jury to find in the non-movant’s favor
Defenses that are waived if not asserted in a pre-answer motion or answer
Civ Pro
- lack of PJ
- improper venue
- insufficient process or service of process
Tag Jurisdiction Method
Civ Pro
PJ acquired by serving the D with formal process while the D is voluntarily in the forum state - even if unrelated to P’s claim
FJR
Civ Pro
Fed appellate court generally has no jurisdiction to hear an appeal until the district court has issued a final judgment on the merits
Omnibus Motion Rule
Civ Pro
Requires that all FRCP defenses be consolidated in a single pre-answer mx
PJ, venue, process/service = waived if not in above
State claim, state defense, joinder = ok in answer/post answer
SMJ = never waived
Asserting defenses (read)
Civ Pro
Most are waived if not asserted in the D’s answer.
Failure to join a required party or failure to state a claim on which relief can be granted = until end of trial
Amendments of Pleadings
Civ Pro
Once as a matter of course within 21 days
- after serving that pleading or
- if a responsive pleading is required, after being served with a responsive pleading or motion
General vs. Specific Jdx
Civ Pro
General: D has continued or systemic contacts with forum state and is “essentially at home”
Specific: P’s claim arises from or is closely related to D’s contact with the forum state
Failure to make required disclosures - sanctions
Civ Pro
- no use of evidence
- opposing party’s reasonable expenses
- inform jury of non-disc.
- impose any other appropriate sanction
Deadline to file notice of appeal
Civ Pro
Generally 30 days but 60 dys if one of the parties is the US, fed agency, or fed officer or employee sued for conduct related to gov duties
Venue
Civ Pro
Proper in any fed district where:
- any D resides
- a subst. part of the events that occured or property at issue is located
- and D subj. to court’s PJ
Statutory impleader actions
Civ Pro
- SMJ requires at least $500 AIM and min diversity between 2 or more claimants
- PJ exists over any claimant who was served with process anywhere in the US
- venue proper in any judicial district where any claimant resides
Claim Preclusion (Res Judicata)
Civ Pro
Valid final judgment on merits prohibits relitigating identical claims between identical parties
Claims = identical = STO
Parties + identical = occupy same roles in both actions
Deposition limits
Civ Pro
- 10 depo limit
- depos after initial planning conf.
- deponent already deposed
Needs court’s leave if violation
Collateral Order Doctrine
Civ Pro
Allows an immediate appeal from an interlocutory order that:
- conclusively resolves an important issue that
- is separate from the merits of the claim and
- canot be effectively reviewed on appeal from a final judgment
Response to Request for Admission
Civ Pro
A party’s admission or failure to adequately respond within 30 days after being served with the request results in the matter being conclusively established in the action
When considering a mx for JMOL, court must:
Civ Pro
- view the evidence and draw all reasonable inferences in favor of the nonmovant
- disregard evidence favorable to the movant that the jury is not required to believe
- NOT consider the credibility witnesses or evaluate the weight of the evidence
Party’s identical disclosures must include
Civ Pro
all documents, electronically stored info, and tangible things in the party’s possession that the party may use to support P’s claims and defenses. NOT those of the opposing party
Issue Preclusion (collateral estoppel)
Civ Pro
Precludes the relitigation of issues that were actually litigated, determined, and essential to valid final judgment
100 mile bulge rule
Civ Pro
Establishes PJ over a party
- added to the suit through impleader or reqired joinder and
- served with process within 100 miles of the fed court where the suit is pending
Exception to BER when evidence is not available
Evidence
Allows extrinsic content to prove if other party had evidence, was put on notice, and did not produce the evidence
BER only applies when
Evidence
the contents of a recording, writing, or photo are at issue - not when a witness is testifying based on personal knowledge
BER in jury trials - what does the jury determine?
Evidence
Whether:
1. an asserted document ever existed
2. another doc produced at hearing or trial is original
3. other evidence of content accurately reflects the doc’s content
If an out of court statement is offered for anything other than the TOMA, upon timely request, the court must
Evidence
- limit the admissibility of the statement to its nonhearsay purpose and
- instruct the jury accordingly
State of mind exception includes
Evidence
Motive, intent, plan and admissible as substantive proof that the declarant later acted in accordance with that state of mind
Prior consistent statement is not hearsay if
Evidence
- made by dec who testified and is subject to cross
- offered to rebut a charge of fabrication/improper influence
- was made before any motive or fabrication arose
Hearings on prelim questions must be held outside jury’s presence if
Evidence
- hearing involves admissibility of a confession
- a D in a criminal case is a witness and requests it
- justice so requires
Leading questions barred on direct unless
Evidence
- witness is a child or an adult with difficulty communicating
- the question is needed to develop witness’s testimony
- witness aligned with adverse party
A court is not bound by evidentiary rules, except those regarding privilege, in determining preliminary questions of fact relating to the admissibility of evidence
Evidence
Read Only
If a witness’s character for truthfulness has been attacked, the party who called the witness may rehabilitate the charaacter by offering:
Evidence
- reputation testimony
- opinion testimony
- testimony on cross re specific instances of conduct
If a party asks to exclude witnesses from the court room, court must exclude them unless the witness is
Evidence
- the party or designated rep
- person who’s presence is essential to the case
- person authorized by statute to be present
Offers to compromise are allowed IF
Evidence
Bias
Negating intentions of undue delay
Proving efforts to obstruct criminal justice
Statements affecting property interests not HS if
Evidence
- matter stated was relevant to the documents purpose and
- later dealings with the property do not contradict the truth purported in the statement/document
Property can be money
Creation of implied in fact contract
Contracts
- party intentionally engages or fails to engage in conduct and
- party knows or has reason to know that assent can be inferred
Common law contract modifications
K
Only binding if there is new consideration - both parties need to alter their duties in some way
Offer to buy goods for immediate shipment can be accepted by promising to ship or shipping. (Read only)
K
Once the offer has been accepted, it cannot be revoked because the contract has been formed.
Preexisting duty rule and payments of debt
K
A debtor’s promise to pay a liquidated debt is NOT consideration for a creditor’s return promise
Duress
K
Physical force
imminent harm
improper threat w no reasonable alt but to succumb
Warranty of merchantibility in UCC K sales
K
Implied in all sales with merchants - dealer in goods of that kind
