Practice Exam

Question 1

mailbox rule doesn’t apply

Answer 1

while it is true that the “mailbox rule” does not apply if an acceptance is sent after a rejection, it generally does apply when the acceptance is sent prior to the rejection.

Question 2

diversity JX-conflict of laws

Answer 2

A federal court with diversity jurisdiction over an action must apply the conflict–of-laws rules of the state in which it sits.

Question 3

leading on direct ok

Answer 3

• federal rules allow leading questions on direct examination in certain situations when it is necessary to develop testimony, such as when the witness is a child, has difficulty communicating due to age or a physical or mental problem, is hostile, is an adverse party, or is associated with an adverse party.
• your own witness can be hostile*

Question 4

conspiracy-overt act

Answer 4

An overt act need not necessarily be performed by the defendant, but may be performed by any party to the conspiracy.

Question 5

rule of completeness

Answer 5

while the rule of completeness generally is applied to the introduction of an omitted portion of an admitted writing or recorded statement, this rule can also apply to separate related writing or recorded statement.

Question 6

derivative use immunity

Answer 6

Derivative-use immunity protects a witness from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution, but does not protect him from its use in a civil suit.

Question 7

lack of JX

Answer 7

Under Rule 12(b), the defense of lack of jurisdiction over the person must be asserted in a responsive pleading or by motion before a responsive pleading is submitted.

Question 8

mortgagor-waste

Answer 8

A mortgagor has a duty not to commit waste with respect to the mortgaged property when such waste impairs the mortgagee’s security interest in that property.

Question 9

frustrated purpose

Answer 9

The doctrine of frustration of purpose applies when an unexpected event arises that destroys one party’s purpose in entering into the contract, even if performance of the contract is not rendered impossible. The event that arises must not be the fault of the frustrated party, and its nonoccurrence must have been a basic assumption of the contract. The frustrated party is entitled to rescind the contract without paying damages.

Question 10

self-defense; harm 3P

Answer 10

When a person using force in self-defense unintentionally harms an innocent third party, the person is not liable for injuries to the third party that occur while the person is acting in self-defense, so long as those injuries were accidental, rather than deliberate, and the person was not negligent with respect to the third party

Question 11

leafleting

Answer 11

-leafleting is a form of speech that enjoys First Amendment protection, such protection does not extend to leafleting on private property, even private property that is open to the public such as a mall.
(hand out pamphlets)

Question 12

after acquired prop doctrine

Answer 12

When a person who attempts to transfer real property that he does not own subsequently becomes owner of that property, the after-acquired title doctrine provides that title to the property automatically vests in the transferee.

Question 13

exception- invoking the rule

Answer 13

At a party’s request, the court must order the exclusion of a witness from the courtroom so that the party cannot hear the testimony of the other witnesses, unless an exception applies. There is an exception for a person whose presence is essential to the presentation of a party’s case, such as the police officer in charge of investigating a criminal case

Question 14

torts- punitive damages

Answer 14

A plaintiff can recover punitive damages in assault, battery, and trespass to chattels claims, if the defendant’s behavior is willful and wanton, reckless, or if the defendant acted with malice

Question 15

disclaim- warranty of fitness for a particular purpose

Answer 15

A warranty that the goods are fit for a particular purpose may be disclaimed by a conspicuous writing. Such a writing need not refer to this warranty by name.

Question 16

modified comparative negligence

Answer 16

Under a modified comparative negligence regime, a plaintiff’s damages are reduced by the percentage that the plaintiff is at fault.

Question 17

last clear chance/mod comparative neg

Answer 17

the last clear chance doctrine has generally been abolished in jurisdictions that have adopted a comparative negligence regime.

Question 18

mortgage-personal obligation

Answer 18

In most states, the mortgagee may elect to pursue its rights against the mortgagor’s personal obligation without first seeking to foreclose on the mortgaged property. Alternatively, where the mortgagee has foreclosed on the mortgage and the mortgage obligation has not been completely satisfied, the mortgagee may seek the deficiency from the mortgagor herself.

Question 19

establish fed q JX

Answer 19

Federal-question jurisdiction exists only when an issue of federal law is presented in the plaintiff’s complaint (the “well-pleaded complaint” rule). Under this rule, the determination of jurisdiction must be made by considering only the necessary elements of the plaintiff’s cause of action, and not potential defenses.

Question 20

[depraved heart] murder

Answer 20

The man may be convicted of depraved heart murder. Depraved heart murder is a killing that results when the defendant acts with reckless indifference to a known and unjustifiably high risk. For this type of murder, the man need not have had the intent to cause either death or serious bodily injury.

this was just “murder’ in the answer

Question 21

IIED

Answer 21

To sustain a claim of intentional infliction of emotional distress, a plaintiff must prove

(1) that she suffered severe emotional distress as a result of the defendant’s conduct,
(2) that the defendant intended to cause severe emotional distress,
(3) or acted with recklessness as to the risk of causing such distress, and
(4) that the defendant’s conduct was extreme and outrageous.

Question 22

transferred intent-IIED

Answer 22

Transferred intent may apply to intentional infliction of emotional distress if, instead of harming the intended person, the defendant’s extreme and outrageous conduct harms another

Question 23

SL- wild animal-dangerous propensity

Answer 23

While the possessor of a wild animal is generally strictly liable for the injuries caused by the animal, strict liability generally does not apply to injuries that do not result from the dangerous propensities of the animal.

Question 24

condition precedent v promise

Answer 24

• The failure of a promise is a breach, and gives rise to damages,
• while the failure of a condition merely relieves a party of the obligation to perform.

Question 25

warranty of fitness or suitability

Answer 25

A builder or other commercial seller of a newly constructed residence gives a warranty of fitness or suitability to the buyer. When this warranty is not mandated by statute, the courts have implied such a warranty. The warranty covers material defects that could not have been uncovered by the buyer through a reasonable inspection prior to purchase.

Question 26

congress and creation of rights

Answer 26

Under Section 5 of the Fourteenth Amendment, Congress can only enforce constitutional rights as declared by the Supreme Court—not create new rights.

Question 27

equitable servitude requirement

Answer 27

(1) the deed contains a clear intent that the promise be enforceable against a successor-in-interest,
(2) the promise touches and concerns the land (i.e., refrain from building a fence on it), (3) and the party against whom it is enforced has notice of it.