Trouble Spots

Question 1

Evidence:

Rules 401-403
Rules 403+
Rules 600s
Rules 800s

Answer 1

401-403: relevance

403+ character, habit, routine

600s: witnesses
800s: hearsay

Question 2

Motion for Relief from Judgment

Answer 2

Brought w/i 1 year of judgment:

1. Mistake, fraud, etc.
2. New evidence could not have been discovered until later
3. Any other justifiable reason

Question 3

Motion for New Trial

Answer 3

Brought w/i 28 days (21 in MI):

1. Error in process taints jury’s decision-making
2. Judge thinks jury’s decision is wrong and against great weight of evidence

Question 4

Pre-Trial Conference

Answer 4

Meeting of Parties

• 21 days before SC they must meet to discuss …
• Within 14 days of meeting, they must put a discovery plan into writing

Scheduling Conference
A scheduling order must be entered within 60 days of defendant’s appearance or 90 days of defendant being served, whichever is earlier.

Question 5

What can be appealed? Time for appeal?

Answer 5

1. Final judgments (not equitable, temporary, interlocutory, or collateral matters).
2. Motions for DV, renewed motions, new trial

Party must appeal within 30 days (US agency = 60 days)

Question 6

Res Judicata

Answer 6

1. Same claims
   - Anything that COULD have been litigated (i.e., compulsory counter-claims)
2. Same parties (or anyone in privity)
3. Final judgment
4. On the merits

Question 7

Issue Preclusion

Answer 7

1. Same issues
2. Actual litigation
   - Only those that were actually litigated
3. Actually decided
4. Necessary
   - The decision of those issues was necessary to the judgment

Defensive:
A sues B and loses. A sues C for same thing. C can use non-mutual collateral estoppel.

Offensive:
A sues B and wins. C sues B and uses collateral estoppel.
- Not allowed in MI

Question 8

What information can you discover?

Answer 8

Relevant, non-privileged information

• Even if it’s for impeachment
• Even if it’s inadmissible hearsay

Question 9

Expert Disclosures

Answer 9

90 days before trial, parties must disclose:

1. Names of experts they’re relying on
2. Reports and bases for them

• Testifying experts can be deposed
• Non-testifying experts don’t have to be disclosed at all
• Factual witnesses can be deposed

Question 10

Pre-Trial Disclosures

Answer 10

30 days before trial, the parties must disclose:

1. The names and reports of expert witnesses
2. The names of supporting witnesses
3. Documents/depositions you plan to offer

Question 11

Initial Disclosures

Answer 11

MBE
Within 14 days after their meeting, the parties must disclose:
1. Computation of damages
2. Copies of insurance agreements, under which an insurer may be liable
3. Names of supporting witnesses (unless for impeachment)
4. Copies/descriptions of supporting documents (unless for impeachment)

MICHIGAN

1. Computation of damages
2. Pertinent parts of insurance, security, surety
3. Anticipated areas of expert testimony
4. Names of anyone who might have discoverable info
5. Objects or documents in your possession or control that may help support a claim/defense
6. Claims, defences, etc.

Question 12

Setting Aside Jury Verdict

Answer 12

1. Jury lied on voir dire
2. Considered improper evidence
3. Decided at random
4. Made significantly inconsistent findings
5. Did not follow instructions

Question 13

Motions for Directed Verdict and Renewed Motions

Answer 13

DV: bring when OP rests their case (or D can bring when they rest their own case).

QMBE: There is no substantial evidence that could support a verdict for OP.

QMI: There is no factual question to which two reasonable minds could differ.

RM: Must have brought the motion for directed verdict, and the renewed motion must be brought within 28 days (21 in MI).

Q: The evidence is insufficient to support the verdict.

Question 14

Promissory Estoppel

Answer 14

When there is no contract:

1. A promise
2. Foreseeable and justifiable reliance
3. Enforcement is necessary to avoid injustice.

Damages: reliance damages

Question 15

Third Party Beneficiaries: Everything

Answer 15

Third Party Beneficiaries
Contract between A and B for performance due to C.
- A: Promisee
- B: Promisor 
- C: TPB

Is the TPB incidental or intended?

1. Is performance owed directly to TPB?
2. Are they expressly designated under the contract?
3. Do they have rights under the contract?
4. Relationship between promisor and TPB

Can TPB sue under the contract? (ABC)
Only if their rights vested.
1. They bring a suit
2. They assent to the promise
3. TPB changes their position in reliance
MI: TPB’s rights vest once the promise becomes binding on Promisor. If they’re not known or not in existence, they vest when they become known or come into existence.

Who can TPB sue?

1. Promisor
2. Promisee (if he is a TPB creditor - i.e., promise was to discharge an obligation to him).

Question 16

Delegation: Everything

Answer 16

A delegates a duty, owed to C, to B.

• Delegator: A
• Delegatee: B
• Obligee: C

An assignment is a delegation of duties (and assignment of rights).

Can you delegate the duty? Generally, yes. Unless:
1. Other party has a substantial interest in having the delegator perform (involves special skill/judgment; special trust relationship b/w obligee and delegator).

2. Contract prohibits delegation or assignment.

Who can Obligee sue?

1. Delegator (unless there is novation)
2. Delegatee (if he got consideration from Delegator).

Question 17

Assignment: Everything

Answer 17

A assigns rights to C, for a duty owed by B.

• Assignor: A
• Assignee: C
• Obligor: B

Can you assign? Yes, unless:
1. It substantially changes obligor’s duties or increases their burden/risk
2. There is a no assignment clause and either:
A. It says assignments will render the K Void; or
B. Assignee has notice of the clause.

What is required to assign?

1. Adequate description of rights assigned
2. Present intent to transfer the rights

Modifying Assignment
- Allowed until Assignee has notice of the assignment

Who can Assignee sue?

1. Obligor
2. Assignor (if assignment was for value and K was breached/revoked)

Question 18

Revoking an Assignment

Answer 18

You can revoke a gratuitous assignment (no consideration) unless:

1. Obligor performed
2. Assignee foreseeably relied
3. Symbolic thing (i.e., stock certificate)
4. Intangible claim (i.e., right to sue)

How do you revoke?

1. Assignor dies/declares bankruptcy
2. Assignor performs
3. Assignor makes subsequent assignment
4. Assignee is notified of revocation

Question 19

6A Confrontation Clause: Evidence

Answer 19

There might of a defendant to confront a witness who testifies against him (Crim cases only):

If the TUN elements are met, the statement is inadmissible because it poses a confrontation problem under the 6A, even if it falls under a hearsay exception (unless Forfeiture by Wrongdoing).

TUN Elements:

1. Statement is testimonial
   - Primary purpose is to establish past events potentially relevant to criminal prosecution.
   - SCOTUS: Ask whether the declarant intended to bear testimony against the accused, such that a reasonable person would anticipate the statement being used against the accused in investigation and prosecution.
2. Declarant is unavailable
3. Defendant had no opportunity for cross-exam (either before or at trial).

Testimonial statements:

• Statements made during interrogations
• Affidavits
• Lab/Scientific reports
• Grand jury testimony is testimonial

Nontestimonial Statements:

• Causal remarks to friend
• Statements in course of police interrogation if the primary purpose of the interrogation was to enable police to meet ongoing emergency.

Question 20

Double Jeopardy

Answer 20

The 5th Amendment guarantees against double jeopardy. Double Jeopardy attaches when the defendant is put in jeopardy.

• At jury trial: once jury is sworn in
• At bench trial: when first witness is sworn in
• Plea bargaining: when court has accepted an unconditional plea

Double Jeopardy provides that a defendant cannot be re-prosecuted by the same sovereign for the same crime once he is acquitted or convicted.

• State and Federal/Other States are different sovereigns
• State and its municipality are the same sovereign

Acquittal: if you are acquitted, you cannot be retried for the same offense.

Conviction: If your conviction is set aside on appeal, it can be retried unless the guilty verdict was set aside for a lack of evidence at trial.

Same Offense: a crime with the exact same elements, or a crime that includes all of the elements of the first charge.
- There must be at least one different element in EACH charge for it to be a different offense.

Exceptions to Double Jeopardy rule

1. Deadlock jury: no decision made
2. Appeal is successful: unless reversal is based on prosecutor not meeting its burden
3. Manifest necessity (ex: defendant asks for new trial or jury hears evidence they should not have heard)
4. Plea agreement is breached by defendant

NOTE: A defendant cannot be tried for a felony murder after being acquitted for the underlying felony.