Review 7/21 Flashcards
When can D assert private necessity as a defense to trespass of land?
Under defense of private necessity, D’s interference w land will be excused if reasonably necessary to avoid an immediate threatened injury to Ds own self or a small group of people
D remains liable for actual damages
BUT if D trespassed for P’s benefit –> cant recover
when can D assert public necessity as a defense to trespass of land?
Under defense of necessity, D’s interference w land will be excused if reasonably necessary to avoid an immediate threatened injury to the community or a large group of people
Absolute defense. P cannot recover anything.
When can a default judgment be entered?
- First, P must show that D failed to respond within 21 days of being served (or 60 if waived service)
- Second, clerk must enter D’s default into the record
- At this point, the court or the clerk may enter a default judgment. Clerk may enter default judgment when
- Default judgment by court clerk—may be entered if:
* D has not responded at all;
* Claim is for money damages;
* P gives an affidavit of sum owed (cant just rely on complaint); AND
* D is not a minor or incompetent
If any of the elements above are not met, the JUDGE must enter default judgment and court will hold a hearing on damages
How do you serve process on the government when you sue them?
When suing the United States, its agencies, or its employees, the plaintiff must serve process on
* (1) the U.S. attorney (or designated agent) for the district where the suit is filed or the civil-process clerk at the U.S. attorney’s office,
* (2) the U.S. Attorney General, and
* (3) any agency or officer whose official conduct is being challenged.
When can you appeal a case
Appellate courts only have jurisdiction to hear appeals of cases that have ended in a final judgement on the merits, unless an exception applies
What orders are apealable without a final judgement? An appeal of a non-final order is known as an “interlocutory appeal”
HIT EM WITH AN ICE PIC
- injunctions
* 2. order granting/denying injunction. doersnt include TROS. cant appeal tro. - class certifications
* 3. orders granting/denying certfication of class
* must file notice of appeal within 14 days after order - extraordinary writ
* 4. askig the appellate court to compel trial judge to act or refrain from acting when a clear legal duty has been violated - parties - multiple claims + parties
* 5. If a case involves multiple claims or parties, court can enter final judgement to some of those claims – allowing those to be appealed, provided there’s no just reason to delay - important collateral issues
* 6. issues too important to wait for, like Immunity, trade secrets, can be appealed provided they are distinct from the main case – ex. i am immune from being sued on this issue. this is collateral to main issue of defamation, but it is important bc if court denies the immunity, case will go forward - controlling issue of law
* 7. A non-final order on a controlling legal question may be appealed if the judge states in writing that:
(1) theres substantial ground for difference of opinion on the issue; AND
(2) that resolving the issue on appeal immediately could speed up the conclusion of the case
Appellate court must agree to review it
what is the deadline for filing a notice of appeal with the DISTRICT court clerk?
A losing party must file a notice of appeal with the trial court within 30 days after entry of the judgment
elements of res ipsa loquitor
what does it give rise to?
Plaintiff must show that:
(a) Ps injury is of a kind that typically does not occur unless someone was negligent
(b) Ps injury was caused by something in Ds exclusive control; AND
(c) the plaintiff is not the one who caused the event to occur.
once established
* Gives rise to a permissible** inference **that D was negligent. Jury **may **draw conclusion that D was negligence if they want
* The burden of proof doesnt shift to D; always stays w P
* Means enough evidence to avoid dismissal before trial
* Bc of this, A directed verdict cannot be granted in favor of D
can a cop order you out of the vehicle, even when there no reason to believe that the passenger was a criminal or dangerous
yes
The driver and passenger(s) can then be ordered out of the vehicle while the officer addresses the matter justifying the stop since this additional intrusion is minimal and helps ensure officer safety.
When is a land possessor liable under the attractive nuisnace doctrine
What are the methods to authenticate physical evidence before it can be introduced at trial?
Before physical evidence can be admitted at trial, it must be authenticated through a prima facie showing that the item is what the proponent claims it to be.
accord + satisfaction
- if a debt is owed, and it is not disputed, partial payment of the debt does not settle it in full
- if a debt is owed, and the parties negotiate / compromise/dispute it → what they settle on is enforceable
- Doubtful Debt: when person 1 doubts that he owes person 2 money in the first place. Person 1 is like huh..? But he still pays it. Person 2 cashes. Then Person 2 tries to get the remaining amount. she can’t. the first Payment made, despite doubt, settles the amount paid.
what is a lesser included offense?
A less serious offense that is necessarily committed during the commission of a greater offense
- trespass is lesser included offense of burglary
- assault is lesser included offense of robbery
- larceny is lesser included offense of robbery
**Trick #1: Sometimes the problem will just ask you if the court can give an instruction in a lesser included offense when asked by the defendant.
The answer is yes.
The answer will say: “If the jury could rationally find the defendant not guilty of the greater offense but guilty of the lesser included offense, the judge may give the instruction.”**
When a state creates a law requiring the below items for elections, what kind of burden is imposed on fundamental right to vote/freely associate? and what test therefore applies?
Voter registration
Photo-ID requirement
Disallowing write-in voting
ordinary non discriminatory burden.
rational basis review
applies to ordinary (nondiscriminatory) burdens like those, and requires the challenger to prove that the regulation is not rationally related to a legitimate state interest or
When a state creates a law requiring the below items for elections, what kind of burden is imposed on fundamental right to vote/freely associate? and what test therefore applies?
Prohibiting a loser of a primary election from running for the same public office in the general election (restricting right to access ballot)
Poll tax
Disallowing third-party candidacies
Property-ownership requirement
severe discriminatory burden
strict scrutiny – applies to severe (discriminatory) burdens and requires the state to prove that its regulation is the least restrictive means of achieving a compelling state interest.
ucc v common law differences
