Top Rules, >20%

Question 1

Conflict of Interest - Duty of Loyalty

Answer 1

A lawyer owes client duty of loyalty, meaning attorney must act in the clients best interest and avoid conflicts.

Attorney cannot engage in self dealing or act in their own interest.

Question 2

Community Property Presumption - Guiding Principle

Answer 2

All property acquired during the course of marriage is presumptively community property.

Separate Property includes:
1) Property acquired prior to marriage/After separation
2) A gift, devisee, or bequest
3) Property acquired with separate funds
4) Profits from separate property

Always trace back the source of funding used to acquire property in question

Question 3

Relevance (logical and legal)

Answer 3

To be admissible, evidence must be logically and legally relevant.

Logical Relevance exists if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.

Legal Relevance exists if it is not excluded on other policy grounds and if its probative value outweighs risks/dangers (such as Unfair prejudice, confusion of issues, misleading jury, undue delay, needlessly cumulative)

Question 4

Duty of Competence

Answer 4

Duty of Competence requires the lawyer to possess the legal knowledge, skills, preparation, and thoroughness necessary to effectively represent the client.

In CA, lawyer subject to discipline only if lawyer acts recklessly, with gross negligence, or repeatedly fails.

Question 5

Applicable Contract Law: Common Law vs. UCC

Answer 5

UCC governs all contracts for the sale of goods. (goods are defined as all things that are movable at the time of identification to the contract)

Common Law governs all other contracts (service, construction, etc.)

With Mixed Contracts, the predominant purpose of the K will determine the governing law.

Question 6

Hearsay Definition

Answer 6

Hearsay is:
1) an Out-Of-Court statement
2) Offered to prove the truth of the matter asserted

ONLY admissible if it falls under hearsay exception

Question 7

Duty of Confidentiality

Answer 7

A lawyer has a duty to maintain the confidentiality of all information relating to the representation of a client.
(broader than attorney-client privilege, extends to ALL information conveyed between lawyer and client/potential client)

Question 8

Conflict of Interest: Current Clients

Answer 8

A lawyer owes his clients the fiduciary duty of loyalty, which requires that the lawyer not represent a client when a conflict of interest exists.

Conflict of Interest - representation is directly adverse to another client or significant risk that lawyer’s representation will be materially limited.

Question 9

Hearsay Exclusion: Statements by a Party Opponent

Answer 9

A statement or admission by a party opponent is NOT hearsay, and is Admissible.
CA considers this an exception, FRE considers this non-hearsay.

Question 10

Transmutations

Answer 10

An agreement between spouses during marriage to change the character of an asset. (from SP to CP or vice versa) ((no consideration required))

Transmutation only valid if:
1) in writing
2) signed and consented to by spouse whose interest is adversely affected
AND
3) expressly declares a change in ownership

Question 11

Requirements to Form a Valid Contract

Answer 11

A valid contract is formed when there is:
1) mutual assent (offer + acceptance)
2) adequate consideration
AND
3) no defenses to formation

Question 12

Statute of Frauds: Contracts Requiring a Signed Writing

Answer 12

Signed Writing Required:
1) Marriage Contracts
2) Suretyships
3) Contracts with no possible way of performance in one year
4) Contracts for Sale of Real Property or creating interest in Real Property
5) Contracts for the Sale of Goods for $500 or more

Statute of Frauds requires:
1) Signature by party burdened
2) Reasonable identification of subject matter
3) Indication of Contract
AND
4) Essential Terms

Question 13

Negligence Elements

Answer 13

1. Duty
2. Breach
3. Causation
4. Damages

Question 14

Fourth Amendment Right - Government Action & Standing

Answer 14

Under the 4th Amendment, a person is granted protection from unlawful government searches and seizures. (does not apply to acts by private individuals).

Standing requires being personally subject to an alleged search or seizure, and a reasonable expectation of privacy

Question 15

Reasonable Expectation of Privacy

Answer 15

Individuals have a reasonable expectation of privacy in that of which they own or possess.

No reasonable expectation of privacy in:
1) Paint scrapings from car
2) Bank account records
3) Anything visible from public airspace
4) Garbage left on the curb
5) the Sound of one’s voice
6) Odors coming from one’s property
7) Handwriting
8) Anything that can be seen in/across areas outside one’s home.

Question 16

Contracts: Available Legal Remedies

Answer 16

Legal Remedies available for Contract Breaches:
1) Expectation Damages (Compensatory Dmgs)
2) Reliance Damages
3) Consequential Damages
4) Incidental Damages
5) Restitution Damages

Question 17

Hearsay Exception: Present Sense Impression

Answer 17

A present sense impression is
1) a statement made by the declarant
2) describing an event
3) while observing the event OR immediately after.

(In CA, this is called a Contemporaneous Statement)

Question 18

Specific Performance

Answer 18

Available when:
1) A valid contract exists with clear/definite terms;
2) Plaintiff has performed or is ready/willing/able to perform;
3) Legal remedies are inadequate (rare/unique item)
4) Enforcement by the Court is feasible
AND
5) No valid equitable or contractual defenses exist.

Question 19

Omitted Child

Answer 19

A child that is not mentioned in a will executed BEFORE birth/adoption is presumed to have been omitted accidentally, and is entitled to an intestate share of estate,
UNLESS
a) Child was Intentionally Omitted;
b) Child is supported by transfers outside of the will
OR
c) Testator has more than one child and left all of estate with parent of omitted child.

i.e., the presumption is that children are in wills, and exclusion is clerical error if timing allows.

Question 20

Subject Matter Jurisdiction - Intro Statement

Answer 20

“A federal court can only hear cases where it has SMJ because it is a court of limited jurisdiction.

A federal court has SMJ if:
a) there is a federal question
b) there is diversity of citizenship among the parties
OR
c) supplemental jurisdiction is present.

Question 21

Subject Matter Jurisdiction - Diversity

Answer 21

Complete Diversity of all Plaintiffs from all defendants.

and

Amount in controversy exceeding $75,000.00

Question 22

Authentication of Evidence: General Rule

Answer 22

All evidence MUST be authenticated before being admitted into evidence. Must prove that the item to be admitted as evidence is actually what the party purports it to be.
(authentication through witness testimony or chain of custody)

Question 23

Lay Witness Testimony & Opinions

Answer 23

A lay witness is any person who gives testimony in a case that is NOT called as an expert.

Lay witness testimony is admissible if witness is competent to testify. (can take oath and has capacity to perceive, recall, and communicate)

A lay witness may only offer an opinion if it is 1) rationally based on the witness’s perception and 2) Helpful to understand witness’s testimony or determine a fact in issue.

Question 24

Duty of Candor to the Court

Answer 24

A lawyer cannot knowingly:
a) make a false statement of fact or law to a tribunal
b) fail to correct a false statement of material fact or law previously made
c) fail to discluse controlling legal authority known to be adverse
OR
d) offer/use evidence that the lawyer knows to be false

Question 25

Expectation Damages

Answer 25

The most common/general measure of damages for breach of contract.

Expectation damages arise Directly from the breach, and seek to put the non-breaching party it would be in but/for the breach.

Factors: Damages must be
1) caused by the defendant (actual cause)
2) foreseeable (proximate cause)
3) Certain (not speculative)
4) Unavoidable

Question 26

Defenses: Laches

Answer 26

Bars a plaintiff’s recovery when:
1) there is an unreasonable delay between when the plaintiff learned of the injury/breach and when the action was brought;
2) the defendant is prejudiced by the delay

Question 27

Duty of Care & Business Judgment Rule

Answer 27

Directors/Officers are fiduciaries of a corporation.
Fiduciaries owe a duty of care.

Fiduciaries must discharge their duties:
1) In good faith
2) In a manner director reasonably believes to be in the best interests of the corporation
AND
3) with the care that a person in a like position would reasonably believe appropriate under similar circumstances (reasonably prudent director)
[aka Business Judgment Rule]

Duty of Care means that a Director must be reasonably informed of the decisions they make.

Question 28

Subject Matter Jurisdiction - Federal Question

Answer 28

Federal Question Jurisdiction exists if a well-pleaded complaint alleges a claim that arises under
a) Federal Law
b) US Constitution
OR
c) US Treaties

[raising a defense of federal law is not sufficient to trigger FQJ]

Question 29

End of the Economic Community

Answer 29

The end of the economic community ends when:
a) either spouse dies
OR
b) there is permanent physical separation

Question 30

Best Evidence Rule

Answer 30

A party must provide the ORIGINAL DOCUMENT when a witness
(a) testifies to the contents of the writing
OR
(b) testifies to knowledge gained solely from the writing

[Called the Secondary Evidence Rule in CA]

Question 31

Defenses: Unclean Hands

Answer 31

The doctrine of Unclean Hands bars a plaintiff’s recovery when a plaintiff is guilty of UNETHICAL, UNLAWFUL, or OTHERWISE IMPROPER conduct related to the subject of the lawsuit.

[Essentially, Doctrine of Unclean Hands = Contributory Negligence]

Question 32

Duty of Loyalty: Fiduciary Duty Owed

Answer 32

A Director/Officer owes the corporation a fiduciary duty of loyalty.

Fiduciary Duty = 1) acting in the best interests of the corporation; AND 2) without personal conflict.

Question 33

Standing

Answer 33

Federal courts are limited to deciding actual cases or controversies, thus a Plaintiff must have standing.

Standing exists when the plaintiff:
1) personally suffered an injury in fact;
2) the injury was caused by the defendant;
AND
3) the injury is redressable by a court order

[when seeking injunction, must show concrete, imminent threat of future injury]

Question 34

Anticipatory Repudiation & Adequate Assurances

Answer 34

An anticipatory repudiation occurs when a party unequivocally communicates that they are unable or unwilling to perform.

A party with REASONABLE GROUNDS for insecurity regarding performance may submit a written demand for adequate assurances from the other party regarding performance.
Failure to provide the adequate assurance within a reasonable time may be treated as an anticipatory repudiation.

[in goods contracts, time to respond cannot exceed 30 days]

Question 35

5th Amendment Privilege Against Self-Incrimination & Miranda Rights

Answer 35

A person has a right not to incriminate oneself and MUST be given Miranda warnings during a CUSTODIAL interrogation.

Miranda informs the suspect that:
1) they have the right to remain silent
2) anything they say can be used against them in court;
3) they have the right to tap to an attorney and have one present when they are questioned
AND
4) an attorney may be provided to them.

Miranda rights only protect statements/acts that are communicative or testimonial in nature.

Question 36

Exclusionary Rule/Fruit of Poisonous Tree Doctrine

Answer 36

Independent, Inevitable, Intervening

Exclusionary Rule - evidence obtained in violation of a defendant’s 4th/5th/6th amendment rights is inadmissible in a criminal case.

All derivative evidence is inadmissible under the fruit of the poisonous tree doctrine.

Exclusionary rule does not apply if:
a) independent source for the secondary evidence;
b) discovery of evidence would have been inevitable regardless;
c) passage of time/intervening events
OR
d) police relied in good faith on defective search warrant

Question 37

Authentication of Evidence: Physical Evidence

Answer 37

Physical evidence may be authenticated through:
a) witness testimony
OR
b) evidence showing substantially unbroken chain of custody

Question 38

Hearsay Exception: Excited Utterance/Spontaneous Statement

Answer 38

Excited Utterance is an exception to the hearsay rule.

An excited utterance is a statement:
1) relating to a startling event or condition;
2) made while declarant was under the stress of excitement caused by event/condition.

[in CA it is called Spontaneous Statement]

Question 39

Defenses: Mitigation of Damages

Answer 39

A plaintiff CANNOT recover damages resulting from a breach that could have been avoided.

A party must take reasonable steps to mitigate their losses. Failure to do so will reduce total damages by the amount plaintiff failed to avoid.

Question 40

Assumption of Risk

Answer 40

Assumption of Risk is a defense to negligence.

Applies if the plaintiff Voluntarily Assumed a Known Risk. Assumption may be express (by agreement) or implied (average person would appreciate the risks involved)

Question 41

Will Execution Requirements

Answer 41

A valid will requires:
1) a writing concerning the distribution of property upon death;
2) signed by the testator (or someone at their direction/in their presence)
3) witnesses by two disinterested individuals
4) signed by the witnesses during the testator’s lifetime
AND
5) witnesses must understand what they were signing.

Question 42

Holographic Will or Codicil

Answer 42

A holographic will (written alteration) is handwritten and signed by testator, but not witnessed.

In CA, a holographic will/codicil is valid if signed by the testator AND all material terms are in the testator’s handwriting.

[Material terms include the name of the beneficiaries and the gifts they will receive under the will]

Question 43

Duty of Loyalty: Conflicting Interest Transaction

Answer 43

A conflicting interest transaction with the corporation is a breach of the duty of loyalty UNLESS Director/Officer shows
(a) it was approved by a majority of Disinterested Directors after full disclosure of all relevant material facts;
(b) it was approved by a majority of Disinterested Shareholders after full disclosure of all relevant material facts
OR
(c) the transaction as a whole was fair to the corporation at the time it was entered into.

Question 44

Property Creditors May Reach to Satisfy Debts

Answer 44

Generally, creditors may reach Community Property to satisfy debts incurred BEFORE or DURING marriage.
BUT
If debts were incurred before marriage, and non-debtor spouse’s earnings were maintained in separate account, they are not reachable.

Question 45

Parol Evidence Rule

Answer 45

Under the Parol Evidence Rule, a party cannot introduce evidence of a prior or contemporaneous agreement that contradicts a later writing.

Question 46

Non-Hearsay: Statements Offered for Other Purposes

Answer 46

If an out of court statement is offered to prove something there than the truth of the statement, it is non-hearsay and admissible.
Examples:
1) Verbal acts of independent legal significance
2) Statements offered to show the effect on the listener
3) Prior Inconsistent Statement, used to impeach
AND
4) Circumstantial evidence of the speaker’s state of mind.

Question 47

Hearsay Exception: State of Mind

Question 48

Duty of Diligence

Answer 48

A lawyer shall act with reasonable diligence and promptness in representing a client.

Question 49

Comparative Negligence & Contributory Negligence

Question 50

Director Conflict of Interest

Answer 50

Occurs when a party

Question 51

Parol Evidence Exceptions

Answer 51

1) To correct a clerical error or typo;
2) to establish a defense against formation;
3) to interpret vague or ambiguous terms;
and
4) to supplement a partially integrated writing.