Prior Exams + LexBar + Themis Exam Notes Flashcards
1
Q
Negligence Standard
A
- Owed a duty of care
- Breached that duty
- Breach was actually and legal cause of
- Damages
2
Q
Duty of Parent to Supervise
A
Must supervise and ensure child does not act in grossly negligent or reckless fashion
3
Q
Contributory negligence
A
Complete bar to recovery
- CN was substantial cause of harm
- CN occurred during the same act or omission as D’s
4
Q
Tort Liability of Child
A
<7 generally not liable
7-13 rebuttable presumed not liable
Relevant comparison is children of like age, knowledge, understanding, and experience
5
Q
Assumption of Risk
A
Complete bar to recovery
- knowingly (full appreciation of scope) &
- voluntarily accepted the risk (no coercion)
6
Q
Eminent Domain/Condemnation
A
Cities, towns, and counties may exercise
Just compensation required
Condemnation only for public use (narrow interpretation, not for economic development)
No sovereign immunity
Only allowed after good faith effort to purchase for reasonable price
Procedures must satisfy due process
7
Q
Inverse condemnation
A
Indirect actions render property essentially worthless without compensation
No sovereign immunity
8
Q
Negligence claim against city - Notice Required
A
City must be given 6 months notice
9
Q
Sovereign Immunity of Cities/Towns
A
Exists with respect to government functions
Does not apply if action is solely proprietary, ie private entity could perform and not uniquely for public benefit
No immunity for gross negligence
10
Q
Examples of Government Functions
A
Require governmental discretion:
- police actions
- fire dept
- road design
- operating parks
11
Q
Examples of proprietary functions
A
Done for convenience:
- maintenance of roads
12
Q
Sovereign immunity of counties
A
Absolutely immune for actions in tort
13
Q
Waivability of Statute of Limitations
A
SoL is waivable
Must be raised as affirmative defense
14
Q
Statutes of Limitations for Contracts
A
Oral - 3 yrs
Written UCC - 4 yrs
Written non-UCC - 5 yrs
Calculated from time of breach
15
Q
Statute of Limitations for Defamation
A
One year
From time of defamatory statement
16
Q
When does UCC apply to contract?
A
- Sale of goods
17
Q
Availability of nonsuit
A
Any time prior to:
- granting of motion to dismiss OR
- when jury retires to deliberate OR
- when court takes case under advisement
18
Q
Elements of Bailment
A
- owner of property (bailor) entrusts property to bailee
- without conveying title
- with intent (by both parties) that there be a bailment
19
Q
Bailment Duties of Care
A
For benefit of both - ordinary care
For sole benefit of bailor - gross negligence or bad faith
For sole benefit of bailee - extraordinary care (liable for all damages from lack of care)
All cases - absolute liability for damage done outside scope of bailment
20
Q
Professional Bailee Liability Waiver
A
Disfavored
Strictly construed
Bailor must have actual knowledge (conspicuous)
21
Q
Employee as Agent
A
Employees are considered agents of their employers
22
Q
Respondeat superior
A
Employer liable for tortious actions of employee in scope of employment (and minor detours)
Generally not liable for intentional torts unless such torts are inherent in nature of work or hiring was negligent
Does not apply to independent contractors unless abnormally dangerous or IC holds themselves out as an employee
23
Q
Bona fide purchaser
A
- Good faith (no notice of other claims)
- Purchased for value (fair market)
24
Q
Criminal jurisdiction over minors
A
Under 14 only JDR
14+ can be certified to Circuit Court:
- non-violent offense, discretionary on motion
- violent offense, mandatory on motion
- drug offense by 16-17, mandatory on motion
- homicide by 16-17, mandatory w/o motion
25
Miranda rights
Apply to custodial interrogations (reasonably believes not free to leave)
Right to silence
Right to counsel
Invocation must be unequivocal
26
Admissibility of Plea Negotiations
Inadmissible in case in chief
Admissible for impeachment
27
Felony Murder
- death occurs
- during dangerous felony (burglary, robbery, arson, rape, kidnapping, etc.)
(Causal and temporal connection)
Liability only for co-perpetrators
28
Robbery
- taking personal property
- from or about the person
- against their will
- by force or fear
29
Principal in 2nd Degree
- Present at crime AND
- Intends crime (natural and probable consequences included) OR
- Provides aid/encouragement
30
Presumption in Favor of Mother in Custody Cases?
Not any more
Statutory favors apply neutrally
31
Guiding Test in Custody Cases
Best interests of the child
32
Statutory Custody Factors
10 Factors
(All designed to address best interests)
- Age and condition of child
- Age and condition of parents
- Relationship with parents
- Child’s needs (other relationships)
- Parents’ roles (past and future)
- Parents’ relations to each other
- Parents’ ability to relate and cooperate
- Child’s reasonable preference (if applicable)
- Abuse
- Catch-all
33
Lawyer’s Duty of Loyalty
Cannot represent new client in matter adverse to former client
Survives death of client
Exception for informed consent of both clients
34
Contract for Will
Allowed in Virginia
Clear and definite contract required
Performance required
Failure to enforce must constitute fraud
Clear and convincing evidence of contract
If will contradicts contract, beneficiary will gold property in constructive trust for benefit of contract recipient
35
Revocation of Will
Can be done by:
- physical act by testator or in their presence
- executing a new will that contradicts prior will
36
Holographic will requirements
- In testator’s handwriting
- Signed by testator
- With testamentary intent
- Two disinterested witnesses must testify to signature
Harmless error: signed document with testamentary intent ok if intended to be a will by clear and convincing evidence
37
Profits of General Partners
Presumed to be in proportion to capital contribution
38
Partnership Definition
Agreement between two or more people to carry on a for-profit business as co-owners
Need not be in writing
39
Rights of Partner Upon Withdrawal/Dissociation
- Share of capital contributions
- Share of partnership assets
- Any amount in partnership account
- Paid within 120 days
40
Partnership Name Rules
Cannot be misleading
Cannot continue using partner name after dissociation
Can use dead partner’s name as long as continuous and death occurred while still partner
41
Requirements to Sell All Corporate Assets
Approval by board
Approval by shareholders
Exception: single shareholder
42
Shareholder Voting Rights
- Fundamental changes (mergers, amendments to charter, sale of all assets)
- Board Elections
43
Board Member Duty of Care
Decisions must be reasonable and in best interest of corporation
44
Business Judgment Rule
Board members decision presumptively reasonable unless:
- inexcusable negligence
- lack of investigation
- wrongdoing
45
Implied Warranty of Fitness for Particular Purpose
Applies when seller has reason to know (from any source) of a buyer’s particular purpose for buying a good and that the buyer relied on the seller’s skill and judgment in selecting the good
Can be disclaimed with words such as “AS IS” or “with all faults”
46
Implied Warranty of Merchantability
Applies when a good is sold by a merchant who deals in goods of that kind
Good must be fit for its ordinary purpose
Can be disclaimed with words such as “as is” or “with all faults”
Can be disclaimed by buyer’s inspection (or failure/refusal to inspect) if inspection would reasonable reveal defects
47
Federal Subject Matter Jurisdiction
- Federal question (involving federal government entity, federal constitution, or other federal law)
OR
- Diversity Jurisdiction (complete diversity + $75,000 amount in controversy)
AT TIME OF FILING
48
Corporate Residency
- Place of Incorporation
- Principal place of business (nerve center; where top directors/officers control primary operations)
49
Effect of Amendment on Federal Diversity Jurisdiction
Complete diversity must survive amendment
Amount in controversy need not survive amendment
50
Duty of Care of Business Owner
Protect invitees from harms on property
51
When Seizure Permitted under 4th Amendment
When officer has probable cause a crime (including a traffic offense) has been committed
Touchstone is objective reasonableness
52
4th Amendment - Cars and Drug Sniffing Dogs
Warrantless search of vehicle OK with probable cause
Cannot extend traffic stop to get drug sniffing dog absent probable cause of drug offense
Can use drug sniffing dog if it does not unreasonably extend stop
Sniff not a search of not in constitutionally protected area (vehicle OK, curtilage not)
53
Motion to Suppress Rules
7 days before trial
In writing
54
Demurrer
Tests the legal sufficiency of the complaint (failure to state a cause of action)
Admits as true all facts alleged in complaint
55
Definition of Negotiable Instrument
Written and signed instrument providing for an unconditional promise to pay specific sum of money to order or bearer; payable on demand at a definite time
56
Liability of Partners
Each partner is personally liable for actions of the partnership and actions of other partners undertaken in the partnership
Professional partnerships may limit liability for malpractice of other partners
57
Statute of Limitations for Personal Injury
2 years
From time of injury
58
When Statutes of Limitations Tolled
- Incapacity (including being a minor)
- While proceeding ongoing
- Actions by defendant intended to delay
59
Use of Depositions in Motion for Summary Judgment
Not allowed UNLESS:
- All parties agree
60
Summary judgment standard
No question of material fact at issue
61
Statute of Limitations for Fraud
2 years
From time fraud discovered (or should have been discovered with diligence)
62
Statute of Limitations for Equitable Claims
None
Doctrine of Laches: look to analogous SoL under law
63
Permanent Injunction Requirements
- irreparable harm
- no remedy at law (money won’t work)
- in the public interest
- balance of equities favors plaintiff (benefit to plaintiff should outweigh burden on defendant)
- enforceable AND
- no equitable defenses (eg unclean hands, laches)
64
Parol Evidence Rule
Oral negotiations not integrated into contract absent intent to integrate
65
Attorneys Fees in Fraud Case
Allowed if plaintiff prevails
Must be requested in complaint
66
Fourth Amendment Search of Home
Requires a warrant issued by magistrate based on probable cause
Must specify things to be searched for and areas to be searched
Search limited to areas where items might reasonably be located
67
Fourth Amendment Searches Caveats
- Plain View
- Exigent Circumstances
68
Strict Liability (torts)
Defendant owes duty by law
Any breach is inherently responsibility of party
No negligence need be proven
69
Can Lawyers Prospectively Limit Malpractice Liability?
No
70
Contingency Fee Agreements
Permissible except in domestic relations cases and criminal cases
Must provide written explanation of fee (rate, how calculated, how fees/expenses addressed)
Must be reasonable
71
Attorney Fee Agreements
Need not be in writing but writing encouraged
Must be disclosed and consented to
Must be reasonable
72
Duties of Attorney
Loyalty
Competence (but not expertise)
Confidentially
73
Are sexual relations with a client OK?
Not explicitly prohibited
Unwise and may compromise duty of loyalty and competence
May create conflict of interest
74
Client Trust Account Rules
Must be kept separate
When dispute arises, must return all funds not in dispute and retain disputed funds in trust account
75
Time to notice appeal from GDC to Circuit Court
10 days (filed in GDC)
76
Will a court disturb a settlement agreement regarding spousal support based on changes circumstances?
Generally no
77
Will a court disturb a settlement agreement regarding child support payments based on changes circumstances?
Yes, if in the best interests of the child
78
Requirements to Transfer Title to Land
Deed should be
- executed AND
- delivered to grantee
Exception to delivery requirement for transfer on death deed (title transfers immediately on death, passes out of probate)
79
Codicil
Amendment to existing will
Must satisfy requirements of valid will or holographic will
80
Incorporation of Separate Writing into Will
Allowed if will specifically describes list and list is signed
81
Intestacy Rules
If survived by spouse:
- spouse gets 100% if decedent has no living kids by another person, ELSE
- spouse gets 1/3 and other kids get 2/3
Else, if survived only be descendants:
- descendants get 100%
Else, if not survived by spouse or descendants:
- Parents get 100%, ELSE
- Siblings get 100%, ELSE
- Paternal/Maternal split, then grandparents and descendants thereof; ELSE aunts and uncles; ELSE great grandparents; ELSE great aunts and uncles, etc.; ELSE
Escheat to state (last resort, “laughing heir” preferred to escheatment)
82
Anti-lapse statute
Gift ordinarily lapses if beneficiary predeceases testator
Under statute, gift will go to beneficiary’s descendants if the beneficiary is a descendant of the testator’s grandparents
83
Adoption Testacy Rules
Adoption severs prior relationship unless adopted by spouse of biological parents
Adoption creates new relationship with adoptive parents
84
General Warranty Deed vs Quitclaim Deed
GWD:
- implied warranties of fitness and inhabitability
QCD:
- no warranties
- very risky, riskiest type of deed
85
Piercing the Corporate Veil
Directors must engage in fraud or misrepresentation
Also possible where corporation founded for purpose of escaping personal liability/under capitalization against foreseeable liabilities from outset
Also possible where directors/officers commingle personal and corporate funds
86
Merger Doctrine
Warranty of title made in a land sale contract is merged into the deed on closing, and disappears
HOWEVER, express warranty of good workmanship is not a warranty of title
87
Federal Rules - Objection to Personal Jurisdiction
Must be raised in first pleading or else waived (can be included in answer)
88
Federal personal jurisdiction
Satisfy both federal and state requirements
Sufficient minimum contacts (purposefully availed protections of forum state)
Claim related to those contacts
Jurisdiction must be fair
89
How to Render Judgment Enforceable
Must be filed in circuit court (where debtor property located)
90
Writ of Execution
Directed to sheriff to enforce judgment by imposing lien on personal property
91
Priority of Liens (UCC Article 9)
Purchase money security interest takes priority over judgment lien if it attaches first and is perfected
92
Tenants by Entirety
Available only to married couples
Prevents creditors of single spouse from reaching property
Does not apply to bank accounts
93
Security Interest Procedure
Step 1: attachment (by written security agreement)
Step 2: perfection (file a financing statement with Corp comm or take possession; for car note interest on car title)
94
Intentional Tort of Battery
Intentional or reckless unwanted touching of another with intent to harm
95
Formation of Principal Agency Relationship
Assent by both parties
Agent work for benefit of principal
Agent agrees to be controlled
96
Virginia Personal Jurisdiction Requirements
- Any resident of Virginia OR
- Party reachable under long arm statute (by direct action or thru agent):
** ACTION MUST ARISE FROM CONNECTION TO VA AND SATISFY DUE PROCESS (MINIMUM CONTACTS)
+ Transacts business in VA (single transaction OK)
+ Contracts to supply services in VA
+ Commits a tort in VA
+ Breach of warranty if reasonably expected goods to be in VA
+ Owns real property in VA
+ Insuring someone in VA
+ Child/spousal support in VA
+ Lived with spouse in VA at time of divorce
+ liable for taxes in VA
97
Minimum Contacts Factors
- Purposefully availed benefits of state
- Foreseeable to be sued in VA
- Relatedness of contacts to action
- Fairness factors (harms vs interests)
98
FOB Contract
Shipment contract
Location stayed after “FOB” is where seller’s risk of loss ends
99
When Attorney’s Fees Available
When provided by statute or contracted for
100
Gross Negligence
Reckless disregard for an unreasonably high risk of injury
101
Duty of care owed to licensee
Warn of known defects (not unknown or visible defects)
102
“Question First Warn Later”
Impermissible evasion of Miranda warning (get an inadmissible confession, provide warnings, get a repeat confession)
Factors to consider:
- time between questionings
- continuity of personnel
- officer demeanor
- environment
103
Embezzlement
Unlawful use of entrusted property with intent to permanently deprive
104
Conspiracy
Agreement to commit a crime
No need for act in furtherance (though may be useful evidence)
Withdrawal not a defense (can limit liability for acts of confederates that post date withdrawal)
105
Statute of Frauds
Contract must be in writing if:
- for real estate
- lease for longer than 1 year
- for >$500 goods (exception for specially manufactured goods with partial performance)
- agreement not to be performed within 1 year
106
Overcoming statute of frauds - Real estate
Two of three:
- buyer made payment
- buyer possessed the property
- buyer made substantial improvements
107
Rights of Finders
Right to possession
No right to title unless property abandoned and finder intends to take title
108
Custody Definition (Domestic Relations)
Legal custody: right to make important decisions (school, health, religion)
Physical custody: where child lives, who is responsible for daily care
109
Visitation Rights of Parents
Separate from custody
Constitutionally protected
Other parent cannot prevent visitation, but may seek visitation schedule
110
Visitation Rights of Third Parties
Not constitutionally protected
Third party is anyone not a parent
Can be established by showing deprivation likely to cause irreparable harm to child AND in child’s best interest
111
Time to File Notice of Removal
30 days from service
112
Federal Motion for Sanctions
Rule 11 Safe Harbor
Must give opposing counsel notice and chance to fix error
113
Duty of Common Carrier
Elevated duty of care - inspections and duty to warn of known or knowable conditions
114
Spousal Immunity
Distinct from Marital Communication Privilege
Prevents spouse from testifying at all against other spouse
Criminal cases
Holder of privilege is testifying spouse
115
Marital Communication Privilege
Prevents testimony from spouse about communications
Civil and criminal trials (not divorce)
Held by both spouses
116
Duty of property owner to public
Limited duty to inspect land and remedy defects known/knowable and likely to present public hazards
117
Proximate cause
“But for cause”
Need not be most direct cause
Harm must be foreseeable result of negligent act/omission
118
Limited Partnership
Limited partners liable only for their contribution
General partners liable as normal
Limitation broken if limited partner exercises control as a general partner would have and injured parties reasonably believe he was general partner
119
Contract of Adhesion
“Take it or leave it” involving surprise bargaining power
Legal but disfavored, construed against superior bargaining power
120
Purchase Money Security Interest
Lender provides borrower with funds to secure the collateral
Takes priority over other security interests
Perfected automatically for 20 days then perfected by filing a financing statement
Imperfected PMSI still crates right to repossess
121
UCC 9 Protections in Car Sale
Creditor must notify debtor 10 days prior to sale
Opportunity to redeem car during notice period
Require commercially reasonable sale (advertisement)
122
Estoppel Elements
Final judgment on merits
Same issue
Fully litigated previously
Material in prior action
Mutuality of parties
123
Distributions to Shareholder Rules
Can’t be made during insolvency or cause insolvency or render Corp incapable of meeting its liabilities and ongoing expenses
Applies to ongoing or winding up
Liable directors can seek indemnity from shareholders who received illegal distributions
124
Duties of Corporate Officers
Duty of care
Duty of loyalty
125
Merchant Confirmation Rule
Where merchant sends written confirmation of contract to another merchant, failure to expressly repudiate contract within 10 days will authenticate written confirmation
126
Dead Man’s Statute
Interested witness may testify to statements of decedent only with corroboration
127
Dillon’s Rule
Virginia localities have no powers other than those expressly provided by the Code or its legislatively-enacted charter, unless otherwise necessary to carry out an express power or indispensable to the purpose for which the locality was created.
Locality may choose method of exercising express power when reasonable
128
Police power of localities
Strictly limited to health, safety, welfare, and morals of citizens
129
Rightful owner of stolen property vs good faith purchase for value
Rightful owner wins
130
Implied Warranty of Good Title
Applies to every sale of goods by a merchant
131
Personal Service on Natural Person
In person; ELSE
Delivery to family member over age 16 at residence and explaining significance; ELSE
Posting on front door and mailing complaint and summons
132
Grounds for Divorce
Fault:
- Adultery (clear and convincing)
- cruelty
- desertion (including constructive desertion)
No-Fault:
- separation for one year (6 months if no kids and valid separation agreement)
133
Bill of Review
Equitable remedy extending 21 day rule to 6 months based on new evidence where:
- after discovered evidence
- material
- not cumulative, corroborative, repetitive
- diligence
- can be produced at a new trial
134
Attempt
Intent to commit crime plus some act toward completion (attempt must fail)
135
Spousal Support Factors
- Fault (may be overcome by gross inequities)
- relative needs and incomes
- opportunities available
- accustomed lifestyle
- sacrifices for marriage
136
Peremptory Strikes
4 in criminal
3 in civil
No extras with co-defendants
137
Choice of Law
Federal court in diversity action applies choice of law provisions of state where it sits
Virginia rule: law of place where contract executed or, if for performance, where performed
Choice of law agreements ok in VA so long as there is reasonable relation of chosen forum
138
Condo Association Standing
Only association has standing to sue for actions relating to common elements
139
Adverse possession
OCEAN
- Open (no hiding)
- Continuous for statutory period (15 years in VA)
- Exclusive
- Adverse (without permission)
- Notorious (as true owner would)
140
Terry Stop
Warrantless stop and frisk permissible with reasonable suspicion
141
Requirements of Transfer of Title to Personal Property
Intent
Acceptance (silence or passage of time OK)
Delivery (physical or symbolic)
142
Time to Respond to FOIA Request
5 Days
143
Waiting period for fault based divorce
1 year for desertion or cruelty
No waiting period for adultery
144
Probate Jurisdiction
Last place of residence (rebuttable presumed unaffected by move to nursing home); ELSE
Location of property owned by decedent; ELSE
Location of death
145
Self-Proving Affidavit
Not required
Obviates need for witnesses to testify to authenticity of their signatures and other requisites of will
Notarized affidavit signed by witnesses and testator stating it complies with requirements
146
Out of state executor?
Ok
Must agree to accept service in VA and post surety bond
147
Usage of Trade; Course of Dealing; Course of Performance
UoT = regularly observed practice
CoD = past transactions between these parties
CoP = past performance in this transaction (only applies to contracts with repeat performance)
Express terms > CoP > CoD > UoT
148
Installment Contract
Delivery in separate lots
Rejection for late delivery only allowed if it substantially impairs value of the installment
149
Irrevocable License
License becomes irrevocable where licensee relies on permission and incurs substantial expenses based on that reliance
150
Divorce Defenses
Recrimination is same conduct by spouse seeking divorce
Connivance is consent or participation in marital wrong
Condonation is forgiveness with knowledge (usually requires cohabitation to resume)
Provocation (act can’t be out of proportion)
151
Division of Marital Property Factors (Divorce)
Equitable (9 factors)
- contributions to acquisition
- duration of marriage
- ages and conditions of parties
- how and when property acquired
- debts/liabilities of each spouse
- tax consequences
- liquidity of property
- use of property for non-marital purpose
- catchall
152
Private Nuisance
Unreasonable interference with use and enjoyment of plaintiff’s land unique to plaintiff
153
How an agent can bind principal
Actual authority (express or implied)
Apparent authority (third party reasonably believed agent had authority based on manifestations of principal)
Ratification (affirmation of unauthorized contract with knowledge of material terms or awareness of lack of knowledge)
154
Derivative Action
Brought by shareholder on behalf of corporation
Have to show that directors refuse to act or that efforts to get them to act are unlikely to succeed
155
Cap on Corporate Officer/Director Liability
Permitted in articles of incorporation
Does not apply to willful conduct
156
Time to Respond to FOIA
5 working days
If not practicable, can get 7 extra working days by responding that it’s not practicable
157
Lawyers Obligations re Meritorious Claims/ Contentions
No frivolous claims/contentions, must have good faith basis (including argument for extension, modification, or reversal of existing law)
158
Summary Contempt
Judge can summarily punish contempt made in its presence with $250 fine and/or 10 days in jail
159
Testamentary Capacity
To have mental capacity, the testator must have the ability to know: (1) the nature/extent of property; (2) the natural objects of her property; (3) the disposition that her will is making; and (4) the ability to connect all of these elements together to form a coherent plan.
160
Probable Cause Definition
Reasonable basis for believing a crime occurred (arrest) or evidence will be found (search)
161
Permissible venue (a-d)
Where defendant resides
Where defendant has registered office/agrees to receive process
Where defendant regularly conducts substantial business activity IFF “any practical nexus” exists to case (eg plaintiff, witnesses, or evidence located there)
Where any part of the cause of action arose
162
Burden of Proof for Fraud
Clear and Convincing Evidence
163
Scope of Discovery
Any matter not privileged that is relevant to the subject matter of the pending litigation
Need not be admissible
Work product and expert opinions that won’t be testified only gettable if it’s very hard to get otherwise
164
Time to File Jury Request
Within 10 days of service of last pleading directed to issue on which jury requested
In writing
Only available for factual issues
