Review 7/20

Question 1

When can an expert testify to give his opinion on facts/issues in a case?

Answer 1

A person may testify (give their opinion) on facts/issues in case when
Qualified
Expert = possesses specialized knowledge, skill, experience, education, or training in a subject that pertains to an issue in litigation.
Testimony is
Relevant – the testimony will help the trier of fact; AND
(1) understand the evidence OR
(2) determine a fact in issue
Reliable – the testimony is
(1) based on sufficient facts or data AND
(2) the product of reliable principles and methods that the expert has reliably applied to the facts of the case
Note: the expert’s opinion must relate to his/her field of expertise

Question 2

Under the dormant commerce clause, when can a state regulate interstate commerce?

When is a law discriminatory?

when is a law unduly burdensome on interstate commerce?

Answer 2

Dormant Commerce Clause
Under this, states may regulate interstate commerce in the absence of a federal statute where:
(1) it does not discriminate against out of state competitors; AND
Discriminatory (facially or discriminatory impact) where it favors in state over out of state.. invalid UNLESS:
Narrowly tailored: to achieve a legitimate, non-economic state interest (health, safety); must be least restrictive means; OR
Market participant: The state acts as a market participant

(2) it does not unduly burden interstate commerce
shouldnt make it overly difficult/expensive to conduct business across state lines
State and local laws that are not discriminatory, but still place an undue burden on interstate commerce → invalid if
Burden on IC clearly outweighs the benefits to the state

Question 3

Under common law

Accessory before/after the fact

Accomplice (aka principal in second degree)

Answer 3

Principals in 2nd Degree (Accomplice): ppl who aid, advise, or encourage the principal and are **present at the scene of the crime. **

Accessories Before the Fact: person who assists or encourages the crime beforehand but not present at scene

Accessories After the Fact: ppl who, knowing that a felony has been committed, assist the felon in escaping arrest or punishment.

At CL, conviction of the principal was required for a conviction of an a

Question 4

Modernly

Accomplice

defense?

Answer 4

Accomplice: aid, counsel, encouraged the commission of a crime with dual intent. (1) intent to assist and (2) intent to that the crime occur

*accompliace liable to same extent as principal for crime that happened + any other foreseeable crimes principal committed

defense: withdrawal is a defense if D withdraws before the crime becomes unstoppable and requires
1) repudiate prior aid/encouragement
2) 2) do all that is possible to counteract the prior aid

Merely being present or knowing a crime will result DOES NOT create accomplice liability

Question 5

Modernly

Accessory after fact

Answer 5

Someone who assists another knowing that they have committed a felony in order to help them escape

Question 6

Question 7

Defense to Accomplice Liability

Answer 7

WITHDRAWAL

is a defense if D withdraws BEFORE the crime becomes unstoppable, and requires

1) repudiate prior aid or encouragement AND
2) do all that is possible to counteract the prior aid

must do so before chain of events is in motion and unstoppable

Question 8

What information is discoverable?

Answer 8

During discovery, parties may request non-privileged information that is (1) relevant and (2) proportional to the needs of the case.

Privileged information not discoverable

Includes work product: materials prepared by or for an attorney in anticipation of litigation UNLESS

1) party shows substantial need
2) it cannot be obtained in another way without undue hardship

mental impressions, legal theories never discoverable

Question 9

What is the implied covenant of marketability?

what renders title unmarketable?

Answer 9

All LSKs contain an implied covenant of marketability (implicit promise that the seller will provide marketable title at closing. Marketable title = title reasonably free from doubt/threat of litigation on closing.

“Red flags” for marketable title

Covenants
Easements
Leases
Liens
Gaps in chain of title
Boundary disputes
Existing zoning violations
Adverse possession

Seller cant convey land acquired by adverse possession. Why? Not good record title

Question 10

when can a party file a Motion for Relief from Judgement

Answer 10

WITHIN 1 YEAR
* You can make a motion for relief from judgement when theres:
* newly discovered evidence
* A clerical error, oversight, or a mistake in the judgement
* If fraud or misconduct by the other party
WITHIN A REASONABLE TIME
* if the law has significantly changed such that the injunction against you is no longer equitably applied against you
*

Question 11

what must a party do to preserve an issue for appeal (has nothing to do w final judgement. this rule assumes that a final judgment has been rendered - im asking what issues can be raised on appeal?)

Answer 11

Timley object to an issue at trial

A party must timely object to any errors **during trial **in order to presrve their right to raise that issue on appeal, after a final judgmet has been rendered.

• if they do not object during trial → u “waived” their right to raise this issue on appeal
• 3 Exceptions to Waiver Requirement
  (even if u dont object to this issue, u can raise on appeal)
• Plain or obvious errors that affect substantial rights [an enormous error the court thinks is so eggregious and affects a partys rights that they just have to act even though you didn’t object
  ** Structural errors **= a timely objection is not needed to challenge a structural error on appeal.
• Biased judge
• Deprivation of right to counsel
• Attorney enters guilty plea over defendant’s objection
• Discriminatory selection of jurors
• Exclusion of defendant from courtroom during trial
• Denial of public trial and/or jury trial
• Improper jury instruction on burden of proof

Question 12

when can a party request jury instructions?

what about after the close of evidence?

Answer 12

Before or at the close of evidence unless the court sets an earlier, reasonable deadline.
* Additionally, a request may be filed after the close of evidence if:

the request relates to an issue that the party could not have reasonably anticipated by the deadline or

the court permits a late submission that relates to any issue.

Question 13

do you have to object to a missing jury instruction?

Answer 13

You don’t have to object to a missing jury instruction if you asked for it and the court said “no” on the record.

Question 14

What methods can be used to authenticate a physical item at trial?

authenticate = establishing it is what the proponent claims it to be

Answer 14

1. Testimony by witness with personal knowledge of object
2. establishing a chain of custody
3. Comparison of object or writing against an authenticated specimen by an expert OR the jury

Question 15

If a single harm was caused by multiple tortfeasors acting in concert then those tortfeasors can be held

Answer 15

Jointly + severally liable

Question 16

If separable harms were caused by multiple tortfeasors acting in concert then those tortfeasors can be held

Answer 16

jointly + severally liable

Question 17

if a single harm was caused by multiple tortfeasors acting independently, they can be held

Answer 17

jointly + severally liable

Question 18

If separable harms were caused by multiple tortfeasors acting in concert then those tortfeasors can be held

Answer 18

several liability (separate)

Question 19

anticipatory repudiation

Answer 19

Occurs when a party unequivocally communicates that they are unable or unwilling to perform under the contract.

If occurs, the non-breaching party may:
* a) treat the contract as repudiated & sue for damages (before time of performance is due);
* b) treat the contract as discharged;
* c) wait until performance is due and then sue; OR
* d) urge the other party to perform.

Question 20

A party can retract its repudiation and restore the contract UNLESS the non-breaching party has:

Answer 20

a) Cancelled the contract;
b) Materially changed its position; OR
c) Indicated that they consider the repudiation final.

Question 21

when can a party request adequate assurances

Answer 21

If there are reasonable grounds for being insecure about performance, THEN a party may make a written request for assurance that the other party will perform
* A party MAY suspend performance until adequate assurances are received.
* If the other party DOES NOT give assurances after asked to do so, the requesting party may treat that as an anticipatory repudiation.

Question 22

When must a judge exclude a witness from the courtroom?

who can NOT be excluded?

Answer 22

Court must exclude witness upon party’s request—and may do so on court’s own initiative—so that they cannot hear other witnesses’ testimony unless witness

Some witnesses cannot be excluded:

• parties or their designated representatives
• persons whose presence is essential to a party’s presentation of its case (eg, expert witness) and
• persons authorized by statute to be present.

Question 23

Excited utterance

Answer 23

statements related to a startling event or condition that are made while the declarant is still under the stress of the excitement caused by the event or condition

Question 24

Statement made for purpose of medical treatment or diagnosis

Answer 24

Statements concerning past or present symptoms, made for the purpose of obtaining medical diagnosis or treatment, and is PERTINENT to that treatement/diagnosis

Ex. “i was shot in the head by david”
Statement = i was shot admissible, this is pertinent to treatemnet,
Statement = by david – not admissible, not pertinent to treatmenet
Usually made to doctor/medical professional (emt) – but not required

Question 25

under the state-action doctrine, private action is treated as government action when

Answer 25

• the private actor performs a traditional and exclusive government function (running an election) or
• the government is significantly involved in the private actor’s activities.

Question 26

5th amendment privilege against self incrimination protects Ds from being comepled to provide incriminating evidence

Does the 5th Amendment Privilege against self-incrimination apply to real or physical evidence?

Answer 26

NO The Fifth Amendment privilege against self-incrimination prohibits the government from compelling a defendant to provide incriminating testimonial communications—not real or physical evidence.

privilege only applies to testimonial communications (eg, oral testimony, act of producing documents)

not real or physical evidence (eg, movements, gestures, blood test).

Question 27

Under 6A Confrontation Clause, a criminal defendant has the right to confront adverse witnesses against him.

An otherwise admissible, out-of-court statement (even if within a hearsay exception) violates the 6th Amend. + is INADMISSIBLE when:

Answer 27

1) The statement is testimonial;
2) Declarant is unavailable to be cross-examined at trial; AND
3) D did not have an opportunity to cross examine the declarant before trial.
**This prohibition is subject to some exceptions, such as dying declarations or when D wrongfully causes witness not to be avail to keep him from testifying

Question 28

what is testimonial evidence

Answer 28

Evidence is testimonial in nature if it was made primarily for use in a criminal investigation or prosecution

These statements have been considered Testimonial =
Statements made to:
a) Grand juries;
b) Affidavit or Certified Report with forensic lab results; OR
c) Statements made to the police whose primary purpose (when viewed objectively) is to collect testimony to be used at a later trial. 

HOWEVER, statements made to police during an on-goingong emergency to the police is NOT considered testimonial.

Question 29

Does the 6A bar the use of a co-defendant 1’s confession, implicating co-defendant 2, at co-defendant 2’s trial?

Answer 29

YES
Typically, the 6th Amendment Conftrontation clause bars use of one co-defendant’s confession at trial against the other UNLESS
If there are 2 co-defendants, and person 1 makes a confession implicating the other, person 1’s confession cannot be used at person 2’s trial against person 2 UNLESS:

• Person 1 is avail to testify so person 2 can confront him
• All portions of person 1’s confession that refer to person 2 can be eliminated; OR
• Person 1’s confession is used merely to rebut person 2’s claim that person 2’s own confession was obtained coercively.

Question 30

Does LL have a duty to warn T about dangerous conditions on the property?

Answer 30

only if those conditions are latent.

angerous latent defects are conditions that:

the landlord knows, or should know, pose an unreasonable risk of physical harm
exist when the tenant takes possession and could not be discovered by the tenant’s reasonable inspection.

A landlord who breaches this duty is liable for physical harm caused by the condition—even after the landlord conveys the leased property to another.

Question 31

what happens when a buyer takes land subject to a mortgate

what is buyer/seller liable for?

Answer 31

**Buyer: **Does not agree to pay loan & is not liable for debt

**Seller: **Remains solely liable for debt

Question 32

what happens when a buyer assumes the mortgage?

what is buyer/seller liable for?

Answer 32

**Buyer: **Agrees to pay loan & is primarily liable for debt

**Seller: **Becomes secondarily liable as surety