Practice MBE Flashcards
An insurance company is a citizen of
(1) Its state of incorporation,
(2) The state of its principal place of business, AND
(3) An insured’s state when the insurer is sued in a direct action
An answer may include both
alternative and inconsistent defenses
Each party must provide to the other parties for inspection and copying, any insurance agreement under which
An insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment
Note: Unless otherwise agreed by stipulation or ordered by the court
A motion for judgement as a matter of law must be made
before the jury renders a verdict
Injunctions are appealable
immediately as a matter of right
(As opposed to NOT non-final interlocutory orders which cannot be appealed immediately)
Even if a judge determines a piece of evidence (e.g. a confession) is admissible, a party may still
introduce other evidence that is relevant to the weight and credibility of the admitted evidence
When the relevance of evidence depends on whether a fact exists, proof supporting the finding that such fact exists may be
introduced AFTER the evidence is admitted
(Think Conditional Relevance - Evidence is relevant (admissible) on the CONDITION it is proved later)
In a defamation action involving a private person and a matter that is not of public concern, truth is
a defense and evidence of specific acts which go to a defendant having spoken truthfully may be admitted
Specific instance of conduct, if used to impeach the credibility of a testifying witness on c-x, may not be
proved by the introduction of extrinsic evidence.
The adverse party may cross-examine the witness about the conduct, but must take his answer as he gives it
“Use” immunity prohibits only
the use of the compelled testimony against the witness
Note: if the government DOES prosecute the witness in such a case, the government has the burden to show that the compelled testimony did not provide an investigatory lead that was helpful to the prosecution.
A dying declaration is admissible ONLY in
homicide prosecutions and civil actions (e.g. NOT attempted murder)
Elections Clause of Art. I explicitly empowers Congress to
override state laws concerning FEDERAL elections (NO commandeering concerns)
The Article IV Privileges and Immunities Clause prohibits a state from
Discriminating against nonresidents with respect to the exercise of a fundamental right or engagement in an essential activity, such as earning a living, unless there is substantial justification for the discrimination
Under the First Amendment, a city can regulate adult entertainment establishments (e.g., by localizing them in a particular area), but
cannot impose a blanket ban on all pornography
A shipment of goods, which usually constitutes an acceptance, does not if
the seller indicates that the shipped goods are made as accommodation
When a contract contains a liquidated-damages clause, the party seeking to repudiate that clause must show
that the agreed-to damage is so exorbitant as to be in the nature of a penalty
Courts will generally not enforce service contracts, but WILL enforce valid
non-compete clauses
False pretenses occurs when an individual
(1) Obtains TITLE to property
(2) Of another person
(3) Through the reliance of that person
(4) On a known false representation of a material past or present fact and
(5) the representation is made with the intent to defraud
Forgery requires the making of a
false WRITING with apparent legal significance (such as a check or a contract)
In order for a witness to be prevented from identifying the defendant in court due to a previous impermissibly suggestive photo array, the defendant must demonstrate
that there was a substantial likelihood of misidentification
Under the “Dual Sovereignty” doctrine, prosecution of a defendant by the federal government for a crime arising out of an event does not prevent
a state from prosecuting the defendant for a crime arising out of the same event
(and vice-versa)
A plaintiff who suffers only economic loss without any related personal injury or property damage cannot
recover such loss through a NEGLIGENCE action
In a comparative negligence jurisdiction, assumption of the risk is
not recognized as a separate defense—it has been merged into the comparative-fault analysis and merely reduces recovery
While owners of airplanes used to be strictly liable for damages caused by the airplanes, the modern trend is to apply
negligence law to accidents in which objects falling from the airplane or the airplane itself harms persons or objects on the ground
Liability from harm caused by abnormally dangerous activities (e.g. fumigating) may nonetheless be barred if
the plaintiff assumed the risk (knowingly and voluntarily)
TLDR: Assumption of the risk IS a defense to strict liability
A residential lease provision that places the burden of repair on the tenant is
generally void
An agreement to assume a mortgage is not subject to
The SoF
The purchase of property at a properly noticed foreclosure sale eliminates
not only the mortgage being foreclosed but also all junior mortgages on the property (even if the purchaser is a junior mortgage)
The holder of a future interest, such as a remainder interest, has
A license to inspect the property for waste (which is NOT subject to revocation by the holder of the current possessory interest in the property)
A seller’s subject intent is irrelevant when determining whether
an object is a fixture that can be removed by a seller of real property
Congress may pass laws which are necessary and proper to
execute an enumerated power (e.g. Spending Power)
Note: On Test if answer includes Necessary and Proper Clause, see if it’s being used as justification for ANOTHER power (since necessary and proper has no significance or power on its own)
If a state’s law burdens a person’s right to interstate travel, then the state must show that the law is
necessary to achieve a compelling interest to survive strict scrutiny.
Note: Durational residency requirements burden the right to interstate travel if they deny basic necessities to newcomers (think medical care)
The Bankruptcy Clause gives Congress the power to
subject states to its provisions (abrogates state immunity)
The Dormant Commerce Clause applies to
economic activity (e.g. NOT recreational activity like hunting)
To modify a contract under the UCC, there need only be
Good Faith
Modifications to a contract that falls within and satisfies the Statute of Frauds need
not be in writing unless they affect the subject matter of the contract or the quantity of goods to be sold
For the specially manufactured goods exception to the SoF to apply, the goods must
not be suitable for sale to others in the ordinary course of the seller’s business
The UCC provides that a merchant seller generally retains the risk of loss in
the absence of a contract term to the contrary until the buyer receives the goods.
HOWEVER: If the buyer is in breach of the contract, the risk of loss passes to the buyer to the extent of any deficiency in the seller’s insurance coverage
The risk of loss of goods passes to the buyer when goods are tendered if
the seller is NOT a merchant
Note: If seller IS a merchant, risk doesn’t pass until buyer receives the goods UNLESS the buyer is in breach
A seller has the right to cure a defective tender if
(1) the time for performance under the contract has not yet lapsed, OR
(2) the seller had reasonable grounds to believe the buyer would accept the goods despite the nonconformity
Withdrawal is NOT a valid defense to
conspiracy
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
A party may comment on a party’s silence and refusal to testify (after invoking the 5th amendment) in
CIVIL cases but NOT criminal
In order for a defendant to be guilty of involuntary manslaughter, there must be
a causal connection between the unlawful act and the death (defendant must legally cause death)
Think at-fault pedestrian and non-negligent truck driver
In order to reverse a conviction on the grounds of ineffective assistance of counsel, the defendant must prove both
(1) That the lawyer’s conduct was not objectively reasonable, AND
(2) That the ineffective counsel actually prejudiced the defendant.
A jurisdiction which follows the doctrine of “imperfect self-defense” allows a murder charge to be reduced to voluntary manslaughter if
the defendant acted honestly, even if it was unreasonable
Even administrative warrants must be executed only to the extent
allowed by the warrant
To be admissible, evidence must be
relevant (make a material fact more or less likely to be true)
A Dead Man’s statute prohibits a
defendant from testifying to statements made during a conversation with a party who is now deceased
Note: Abolished in FRE (but MAY be applicable by statute on MBE)
The rule of completeness permits a party to compel the introduction of a statement that in fairness should be considered at the same time as an admitted writing or recorded statement, but such introduction need not
be immediate if fairness does not require an immediate introduction of the evidence (the defendant can present the evidence later)
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 (e.g. the parties themselves, or the police officer in charge of investigating the criminal case)
Relevant evidence may be excluded if
(1) its probative value is outweighed by the danger of unfair prejudice,
(2) there’s confusion of the issues or misleading the jury, or
(3) if it is needlessly repetitive or prohibited by some specific rule
Evidence of a defendant’s character is inadmissible in a civil case to prove
that the defendant acted in conformity with that character trait unless the defendant’s character is an essential element of a claim or defense
(In Civil Cases think negligent hiring, negligent entrustment, fraud, defamation, child custody)
This is DIFFERENT than in criminal case
Civil cases, in which character is an essential element/issue to the claim, include
negligent hiring, negligent entrustment, fraud, defamation (or libel), child custody
A judge may ask a witness a question so long as
it is relevant and proper (something either of the parties could have otherwise asked)
(e.g. could NOT ask a question which calls for speculation or an unsupported conclusion)
Transactional immunity prevents a witness from being prosecuted for
ANYTHING related to the underlying crime (not issued very often)
While a judge determines the admissibility of evidence, the jury
determines the weight and credibility of such evidence
A defendant that is an entity with the capacity to sue and be sued, regardless of whether incorporated, is deemed to reside in
any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question
Note: Therefore could be subject to PJ in state of inc., where principal place of business is, OR wherever otherwise is subject to PJ
If there’s a relevant forum selection clause, venue can
still be proper in the court in which the case is brought, but would THEN need to be transferred
Note: Forum selection clause doesn’t necessarily prevent a forum state from being “proper” venue
In rem jurisdiction, which is the authority of a court to determine issues concerning rights in property, is applicable only when
the suit concerns the property
Disclosure of experts who will testify at trial must be made
90 days before trial unless there is
(1) substantial justification or
(2) failure to disclose was harmless
A plaintiff may dismiss an action without court approval or the agreement of the other parties prior to
(1) the service of an answer or
(2) summary judgment motion
Note: Motion to dismiss is NOT a motion for summary judgement
Interpleader allows the possessor of property to
force all potential claimants to the property into a single lawsuit to determine who has a right to the property
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
Equitable servitudes do NOT require
either form of privity
Require Notice, Touch and Concern, and Intent for the servitude to be enforceable against successors-in-interest
Under the UVPRA, a seller remains liable for damage to property during the period between executing the land sale agreement and closing if
the seller remains in the property during that time
Subrogation is when a party
pays off the entire outstanding mortgage obligation of another and becomes an owner of that interest (subrogates interests of the mortgagee)
Acceptance of an Assignment by a Landlord when there is an anti-assignment clause in a contract is
a waiver of any right to object to any future assignment (note - applies ONLY to assignment, NOT subletting)
Under the Rule of Convenience, when a language is not clear as to who is a class member, a class is determined when
the first person meets the specifications for class membership (e.g. child attains specific age relevant to possess property)
Note: Rule of Convenience is used to protect future class gifts from RAP
When a defendant using force against an actual or apparent aggressor in self-defense unintentionally harms a bystander, the defendant is
not subject to intentional tort liability to the bystander BUT may be liable for negligence
Punitive damages are available for
intentional torts (assault, battery, false imprisonment, trespass)
The attractive nuisance doctrine does not require that
the child be enticed onto the property by the presence of the condition
Under the collateral-source rule, a defendant cannot
reduce his damages by amounts received by the plaintiff from a third party (e.g. insurance)
