Tough Concepts Flashcards
Insanity Defenses
Flow Chart for Removal to Federal Court
Unavailable Declarant Exceptions
- Dying Declaration
- Former Testimony
- Statement against interest
- Statement of personal/family history
- Statement offered against party that wrongfully caused unavailability
When can a court exercise discretion in declining proper supplemental JDx
- issue of novel/complex state law
- Claim predominates over original claim
- OG claims have been dismissed
- Other compelling reason
Different Types of Larceny Flow Chart
Alternative Sources of Personal JDx
Authenticating Ancient Documents
- at least 20 years old (30 in CA)
- condition creates no suspicion as to authenticity
- in place where authentic document would likely be
Mercy Rule
Criminal D may introduce R/O evidence that their character is inconsistent with the crime charged
i.e. D’s character for honesty inconsistent with the charge of embezzlement.
Prosecution may then may rebut with it’s own witness through R/O; OR XE D’s witness w/ specific instances of conduct.
Discovery of Non-Testifying Expert
Facts/opinions/identity held by expert NOT discoverable unless
1. relate to court-ordered examination
2. exceptional circumstances render it impracticable to obtain info through other means (party dies and cannot be evalutated)
Discovery of Testifying Expert
Facts known/opinions held by expert discoverable through depo
Drafts of reports and disclosures not discoverable
Comms between attorney and expert not discoverable UNLESS
1. Relate to expert compensation
2. Identify, facts, data, or assumptions provided by attorney that expert considered in forming opinions.
Types of Fifth Amendment Takings
Exactions Test
Condition to obtain building permit is a taking unless government can establish:
- Essential Nexus -imposed condition substantially advances legitimate government interest 2. rough proprotionality - proposed development’s impact on community is roughly proportional to the imposed condition’s burden on the landowner
Ex Posto Facto Clauses
Bill of attainder
Article 1 bars states/fed from legislative acts that punish a specified person or group without a trial.
Required Discovery Disclosures
3rd Party Standing
- P and 3rd party have a special relationship (inextricably close
- genuine obstacles prevent the 3rd part from asserting their rights
Admissibility of Character Evidence for Propensity Flowchart
Response to Amended Pleading
Party may amend original pleading once as a matter of course. When this occurs, answering party must respond by later of the following
1. Time remaining to respond to original pleading (typically 21 days after service of process)
2. 14 days after service of amended pleading
Public Forum Regulations
Must be content-neutral (time/place/manner). No viewpoint discrimination. and must be
1. Narrowly tailored to serve a substantial government interest and
2. leave open ample alternatives to channels of communications
Impeaching with Criminal Conviction FlowChart
PR: Retainer Agreements
ABA: No writing requirement unless contingency
CA: No writing requirement for
1. Representation <$1,000
2. Corporate Client
3. Emergency
CA still needs writing for contingency
Duty of Loyalty: Attorney’s own Interest
- Relationship with opposing attorney
- Stake in the outcome
- Membership in organizations against what attorney is advocating for the client
May arise before or during the represenation
Duty of Loyalty: Current and Former Client
May not represent new client if
1. materially limit the current client
2. potentially reveal confidential infomration regarding the former client
Duty of Loyalty: Waiver of Conflict
- Atty reasonably believes he can competently and dilligently represent the client (objective & subjective)
- Not prohibited by law
- Informed consent (ABA); informed written consent (CA)
Beginning/End of Attorney-Client Relationship
Begins when client reasonably believes that a relationship has begun
ABA: Lasts forever
CA: relationship terminates once the client has died and estate settled
Corporate Clients: dissolution of the company
Duty of Competence
ABA: must represent client with sufficient knowledge, thoroughness, and completion
CA: Attorney must not act with reckless disregard, gross negligence, or willfully when representing client.
Duty of Diligence
ABA: diligence= knowledge, thoroughness, and completion
CA: Attorney must not act with reckless disregard or with gross negligence when representing client.
Duty to Communicate
Attorney has duty to communicate with client regarding all critical stages of the case and disclose all potential or apparent conflicts
PR: Lying to Client
Attorney must never lie to client even if doing so would jeopardize there relationship with the client.
Piercing the Corporate Veil elements
Generally, shareholders are not personally liable for corporate acts. however, courts may allow a P to pierce the corporate veil and sue a shareholder individually if:
- Undercapitalization at the time of formation
- Disregard of Corporate Formalities
- Use of Corporate Assets as Shareholder’s Own Assets
- Self-Dealing
Derivative Action
Shareholder may bring a derivative action on behalf of the other shareholders of the corporation for a breach of fiduciary duties by the directors. Recovery will go to the corporation rather than the shareholder personally.
Steps to Bring a Derivative Action
- Standing (SH at time of wrong; maintain ownership throughout litigation; Adequately Represents the shareholders)
- Demand: must make written demand to the board (90 days wait unless rejection or irreperable injury) UNLESS Demand is futile
Corporations: Duty of Loyalty Definition
Director has the duty to put the corporations interest before his own.
Corporations: Duty of Loyalty - Self Dealing
Rule: Transaction between the corp and a director (or relatives) or a business in which the director has an interest that would normally require approval of the board is a breach of duty of loyalty UNLESS:
1. Ratification disclosure of material facts + approval by majority of disinterested board members or shareholders.
2. Substantively Fair
Corporations: Duty of Loyalty: Corporate Opportunity
A director/officer cannot usurp a corporate opportunity unless they first notify the board and wait for acceptance/rejection before seizing the opportunity.
Measured by interest or expectancy or line of business test
Remedy: damages, constructive trust, or corp gets opportunity at cost.
Corporations: Duty of Loyalty - Competing Venture
A director/officer that engages in a business that competes with the Corp is in breach of his duty of loyalty
Remedy: Constructive Trust on profits or injunctive relief
Corporations: Duty of Care
Must act as a prudent person in like circumstances; must use any special skills
Corporations: Duty of Care - Business Judgment Rule
In the absence of fraud, illegality, or self dealing, the good faith actions of a director or officer will not be disturbed
Controlling Shareholder
Anyone with 50% of a corporations assets, or a controlling share when no-one has over 50%, owes a fiduciary duty to minority shareholders to not use their power in a way to disadvantage them.
Corporations: Compel Dividends
Shareholders generally can’t compel a payment of a dividend.
To compel, shareholder must prove
1) funds legally available
2) bad faith on directors in refusal pay
Crim Law: Mistake of Law Defenses
No defense unless
1. Law unavailable*
2. D reasonably relied on invalid law
3. Mistake negates mens rea
Crim Law: Mistake of Fact
Defense when mistake negates mens rea:
1. Specific intent - defense if honest mistake
2. General intent & Malice - defense if honest & reasonable mistake
3. Strict Liability - no defense
First Amendment: Commercial Speach
Government can ban commercial speech that is 1) false or misleading or 2) concerns unlawful activity
Government can only regulated protected commercial speech if the government proves its regulation directly advances a substantial government interest and is not more extensive than necessary to serve that interest.
Impeaching witness’s character for truthfulness flowchart
Equal Protection Challenge: Citizenship Flowchart
Dormant Commerce Clause: Two Types of Unconstitutional Regulations
- Discriminatory (favors in-state interests): Unconstitutional unless it furthers legitimate state interest and no reasonable alternative
- Nondiscriminatory (undue burden): Unconstitutional if burden clearly exceeds local benefit.
Transferring interest through Deed
A deed transfers an interest in real property once it has been delivered and accepted
1. Delivery: evidenced by the grantor’s intent to presently transfer an interest to the grantee, even if the interest itself is a future interest; AND
2. Accepted - presumed if transfer benefits the grantee.
Presumed Delivery of Deed
- Physical delivery
- Recording
- Unconditional delivery to agent
- Grantee obtains possession of deed
May be rebutted by evidence that the grantor did not intend to presently transfer an interest to the grantee.
PR: Fee Splitting
ABA: Allowed so long as 1) client consent; 2) fee is proportional
CA: allowed so long as
1) not unconscionable
2. written consent
3) can’t increase overall fee
Corps: Rule16(b)(Swing Trading)
Prohibits D/O/10%SH from purchasing/selling or selling/purchasing stocks in less than six months
Corp entitled to recover maximum difference
Rul 10(b)(5)
Relation Back Doctrine: Two Types
New Claim: Arise out of the same conduct, transaction, or occurence set out in original pleading
New Party:
1. Amendment asserts claim/defense that arose out of conduct/transaction/occurence in original pleading
2. notice given to new D within 90 days after original complaint
3. party to be brought in by amendment knew/should have known action would have been brought against him but for a mistake concerning the proper party’s identity.
Motion for Summary Judgment
will be granted if all the evidence shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law
Court must construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party.
Summary Judgment: Issue of Material Fact
Reasonable Jury could return a verdict in favor of the nonmoving party.
Claim Preclusion Elements
- Valid Final Judgment on the Merits: Valid=proper JDx (P and SM) and D had notice and opportunity to be heard. Final judgment=nothing further for the court to do but enter judgment. Merits=Summary judgment/JMOL/RJMOL/Full trial
- Identical Cause of Action
- Identical Parties
Preclusion: Valid Final Judgment on Merits
- Valid proper JDx (P and SM) and D had notice and opportunity to be heard.
- Final judgment nothing further for the court to do but enter judgment.
- Merits Summary judgment/JMOL/RJMOL/Full trial
Issue Preclusion
- Same Issue (facts relevant to issue and applicable law must be identical)
- Actually litigated
- Final Valid Judgment
- Essential to Judgment (issue constitutes a necessary component of the decision reached)
Allowable Discovery
Permitted with regard to any matter relevant to any party’s claim/defense in the action that is not privileged. It need not be admissible to be discoverable. Discoverable if it appears reasonably calculated to lead to the discovery of admissible evidence.
Motion to Compel
- Served on all parties
- Accompanied with certificate that movant has made good faith effort to M&C
Discovery Challenge: Court Factors
Court will balance
1. Parties interest in seeking discovery
2. Privacy interests in the parties
Partner v. Employee
Partner=agree to carry on as co-owners for profit. Receive share of profits=presumed partner (unless wages)
Employee=hired by company, paid salary/wages to perform service, works at behest and direction of a business
Members
Owners of an LLC
Partnerships: Express Authority
May arise from
1. Partnership Agreement
2. Authorization of the partners
3. Statement of authority filed with the state
Partnerships: Implied Authority
Based on partner’s reasonable belief that an action is necessary to carry out his express authority.
Partnerships: Apparent Authority
Exists if partnership holds a partner or employee out as possessing certain authority, thereby inducing others to reasonably believe that such authority exists.
Look to RB of 3rd party.
