What I Wish I Knew Flashcards
Piercing the Corporate Veil
The investors in a corporation are subject to limited liability for corporate acts, and they are only at risk to the extent of their investment. This principle of limited liability is subject to challenge. If a plaintiff can “pierce the corporate veil,” then a corporation’s existence is ignored, and the shareholders of the corporation are held personally liable. Totality of Circumstances to test if veil has been pierced.
Formation of Agency Relationship
Under contract law, an agent may negotiate and make contracts with third persons on behalf of a principal (such as a corporation). A contract made by an agent on behalf of a principal with a third person may be binding on the principal if the agent was authorized to enter into the contract.
An agency relationship is created when: (i) a principal manifests assent to an agent; (ii) the agent acts on the principal’s behalf; (iii) the agent’s actions are subject to the principal’s control; and (iv) the agent manifests assent or otherwise consents.
Formation and Breach
A binding contract is created through the process of mutual assent (i.e., offer and acceptance) and consideration, and when no valid defenses to contract exist.
Once a duty to perform exists under a valid contract, nonperformance of that duty constitutes a breach.
Venue
In general, venue in a federal civil action is proper in only one of the following judicial districts: (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.
A defendant that is an entity with the capacity to sue and be sued, regardless of whether incorporated, is deemed to reside in any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question. In a state that contains multiple judicial districts and in which a defendant corporation is subject to personal jurisdiction at the time the action is commenced, the corporation “shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State.”
Personal/In personam Jurisdiction
Personal jurisdiction refers to the judicial power over the persons or property involved in the cases or controversies before it. There are three general types of personal jurisdiction: (i) in personam jurisdiction; (ii) in rem jurisdiction; and (iii) quasi-in-rem jurisdiction.
In personam jurisdiction is the power that a court has over an individual party. There are four bases for in personam jurisdiction:
(i) voluntary presence;
(ii) domicile;
(iii) consent; and
(iv) long-arm statutes.
Scope of Discovery
Discovery is generally permitted with regard to any matter relevant to any party’s claim or defense in the action that is not otherwise privileged. This includes the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. Admissibility of the evidence at trial does not matter for determining relevance for purposes of discovery.
Test: whether the information sought is relevant to any party’s claim or defense. Information may be discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.”
Work-Product Privilege
Generally, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.
Absolutely protected: Disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.
For all other trial preparation materials, a court may order discovery if the party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain a substantial equivalent by other means.
Erie Doctrine
In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located. Therefore, if res judicata and collateral estoppel would be governed by state law if they are found to be substantive issues. But if they are found to be procedural, then the federal rules of civil procedure (“FRCP”) will apply.
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Res Judicata/Claim Preclusion
Under the FRCP and California law, the doctrine of claim preclusion (i.e., res judicata) provides that a final judgment on the merits of an action precludes a party from successive litigation of an identical claim in a subsequent action. Res judicata requires proof of the following elements: (1) there was a valid final judgment on the merits, (2) the original and subsequent claims are sufficiently identical, and (3) the claimant and the defendant must be the same or in substantial privity (and in the same roles) in both the original action and the subsequently filed action.
Collateral Estoppel/Issue Preclusion
The doctrine of collateral estoppel (i.e., issue preclusion) precludes the relitigation of issues of fact or law that have already been necessarily determined in an earlier adjudication. Unlike res judicata, collateral estoppel does not require strict mutuality of parties; it requires only that the party against whom the issue is to be precluded was a party to the original action. Collateral estoppel also requires proof of the following elements:
(1) the issue sought to be precluded must be the same as that involved in the prior action,
(2) the issue must have been actually litigated in the prior action,
(3) the issue must have been determined by a valid and binding final judgment, and
(4) the determination of the issue must have been essential to the prior judgment.
Well-Pleaded Complaint/12(b)(6)
Under FRCP 12(b)(6), a claim for relief can be dismissed if it
(A) fails to assert a legal theory of recovery that is cognizable at law or
(B) fails to allege facts sufficient to support a cognizable claim.
The U.S. Supreme Court has established a two-step analysis for adjudicating a motion to dismiss under FRCP 12(b)(6). First, the court must identify and reject legal conclusions unsupported by factual allegations. This includes mere conclusory statements and assertions devoid of facts.
Second, the court should assume the truth or veracity of well-pleaded factual allegations and should include a “context specific” analysis that draws on the court’s judicial experience and common sense to determine whether the allegations plausibly give rise to an entitlement of relief.
Notice Pleading - 8(a)(2)
Federal courts require notice pleading, which means that the pleading must put the opposing party on notice of the claim by pleading facts supporting a plausible claim. Under FRCP 8(a), the complaint must contain a statement of subject matter jurisdiction, statement of the claim, and a demand for relief. However, under FRCP 9, if the cause of action is for fraud, mistake, or special damages, then it must be pleaded with particularity or specificity.
Subject Matter Jurisdiction
SMJ is the federal court’s power to hear a particular case. SMJ can be based upon federal-question jurisdiction or diversity jurisdiction.
Diversity Jurisdiction
Diversity jurisdiction requires a showing of (1) complete diversity and (2) an amount in controversy that exceeds $75,000.
Amount in controversy DOES NOT include attorney’s fees
Supplemental Jurisdiction
Supplemental jurisdiction allows federal courts to exercise jurisdiction over additional claims that, by themselves, do not meet the requirements of federal-question or diversity jurisdiction. The test is whether the claim arises from a common nucleus of operative facts as an original claim over which the district court has SMJ. If so, then the district court can exercise supplemental jurisdiction over the claim.
Seventh Amendment Right to Jury Trial
In federal court, the right to jury trial is governed by the Seventh Amendment. The Seventh Amendment preserves the right to a jury trial in federal court in all “suits of common law” where the amount in controversy exceeds $20. The right to a jury trial generally extends to legal, but not equitable, issues. If the same case involves both legal and equitable issues, then the jury normally determines the legal claims first, and the court determines the equitable claims second. Further, the demand for a jury trial must be in writing and it must be filed with the court within 14 days after service of the last pleading directed to the issue that is sought to be tried by jury.
Logical and Legal Relevance
Evidence is logically relevant if it has any tendency to prove or disprove a disputed fact that is of consequence in determining the action.
The court may exclude relevant evidence if its probative value is
(i) substantially outweighed by a danger of unfair prejudice,
(ii) confusing the issues,
(iii) misleading the jury, undue delay, wasting time, or
(iv) needlessly presenting cumulative evidence.
Character Evidence
Character evidence is generalized information about a person’s behavior. In a civil case, evidence of a person’s character (or character trait) is generally inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion. But see: MIMIC
Witness Impeachment
Impeachment is the process of casting doubt on a witness’s credibility or attacking a witness’s veracity. Evidence of bias, motive to lie, prejudice, or having an interest in the outcome of the case is admissible to impeach a witness.
A witness may be impeached by calling into question her credibility. A witness may be impeached with a prior inconsistent statement that need not have been made under oath.
In a civil case in California, a witness’s character for truthfulness may not be impeached on cross-examination by introducing specific instances of conduct
Hearsay
Hearsay is an out of court statement offered to prove the truth of the matter asserted in the statement. Absent an exception, hearsay is inadmissible.
Lay Witness Opinion
Opinions by lay witnesses are generally inadmissible except when they are
(1) rationally based on the witness’s perception,
(2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and
(3) not based on scientific, technical, or other specialized knowledge.
Expert Witness Opinion
Before an expert witness may testify, the court must first determine that the subject matter of the witness’s testimony
(i) is scientific, technical, or other specialized knowledge, which focuses on the reliability of the testimony, and
(ii) will help the trier of fact understand the evidence or determine a fact in issue, which focuses on the relevance of the testimony.
Authentication of Tangible Evidence
All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.
Spousal Privilege
Spousal privilege comprises two distinct privileges: spousal immunity and confidential marital communications. Proposition 8 does not overrule privileges.
In California, a married person whose spouse is a party to a proceeding (civil or criminal) has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege. The spousal-immunity privilege applies to testimony about events that occurred before and during the marriage. The privilege can be asserted only during a valid marriage. The right to assert the privilege expires upon divorce or annulment.
Communication made between spouses while married is privileged. This privilege applies only to communications made during marriage. This privilege applies to civil and criminal cases. Both spouses hold this privilege.
Attorney-Client Privilege
The attorney-client privilege (A-C privilege) is an evidentiary privilege that prevents an attorney from testifying to confidential communications made by the client to the attorney for the purpose of seeking legal advice or representation. As the client is the holder of the privilege, only the client may waive it. A communication made in the presence of a third party generally is not privileged.
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CA CP Presumptions
California is a community property state. In a community property state, the marital economic community (MEC) begins upon marriage and ends at divorce, the death of a spouse, or permanent separation. Permanent separation occurs when there is a complete and final break in the marital relationship, which must be proved by evidence that (i) at least one spouse has expressed the intent to end the marriage and (ii) the spouse’s conduct is consistent with the intent to end the marriage.
Property acquired during the marriage is presumed to be community property (CP). All earnings during the marriage and all property acquired with those earnings are considered CP. All debts incurred during the marriage are the debts of the MEC. Property that either spouse acquired before the marriage or after death, divorce, or permanent separation is separate property (SP). During the marriage, property acquired by gift or inheritance is SP, as well as any other property that is traceable to an SP source. Quasi-community property (QCP) is property acquired by a married couple while living in a non-CP state that would be characterized as CP if the couple had been living in California at the time the property was acquired. The QCP classification is triggered by divorce or the death of the titled spouse.
Standing
A federal court cannot decide a case unless the plaintiff has standing—i.e., a concrete interest in the outcome—to bring it. Standing requires an injury in fact, causation, and redressability.
Ripeness
“Ripeness” refers to the readiness of a case for litigation. A federal court will not consider a claim before it has fully developed; to do so would be premature, and any potential injury would be speculative. For a case to be ripe for review, the plaintiff must have experienced a real injury or imminent threat thereof.
Mootness
A live controversy must exist at each stage of review, not merely when the complaint is filed. A case has become moot if there is no longer a controversy.
Temporary Restraining Order
A temporary restraining order (“TRO”) is an injunction for a short time. It is the order sought at the first stage in the plaintiff’s request for injunctive relief. Its purpose is to maintain the status quo pending a hearing for a preliminary injunction, and it may be issued ex parte—i.e., without notice to the defendant. If issued ex parte, the applicant must explain under oath that if the TRO is not issued the applicant will suffer immediate and irreparable harm if he is forced to wait until the other side is heard. Hardships are typically not balanced at the TRO stage.
Preliminary Injunction
A preliminary injunction (“PI”) is a provisional remedy designed to maintain the status quo pending a trial. Unlike a TRO, a preliminary injunction cannot be issued unless the defendant has been given notice and an opportunity to be heard. In order to obtain a PI, the plaintiff must show that
(i) he will suffer irreparable harm if the injunction is not granted,
(ii) a likelihood of success on the merits, and
(iii) the balancing of the equities (the hardships) weighs in the plaintiff’s favor.
First Amendment - Establishment Clause
The Establishment Clause compels government neutrality towards religion. Challenges brought under this clause are generally reviewed under the “historical practices and understandings” test, which imposes a presumption of constitutionality for longstanding monuments, symbols, and practices. But courts may forego this test and apply the more stringent strict scrutiny test when the law directly impacts a religion. Under strict scrutiny, the law is invalid unless the government proves that the law is necessary (i.e., uses the least restrictive means) to achieve a compelling government interest.
Procedural Due Process
The Due Process Clause of the Fourteenth Amendment provides that “no state shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law.” In assessing if there has been violation of the PDP clause, the court will
(i) first determine if there has been a deprivation of a life, liberty, or property (LLP) right. If there has been a taking of an LLP right, then
(ii) second, the court will determine whether sufficient due process was afforded or what amount of due process is due (notice + hearing)
Interstate Commerce + Congress
Congress has the power to regulate (i) the channels (highways, waterways, airways, etc.) and (ii) the instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce, as well as (iii) any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right.
Delegation of Legislative Powers
Because Congress is vested by Article I with “all legislative powers,” it may not delegate that power to any other branch of government. This principle is known as the “non-delegation doctrine.” However, delegation of some of Congress’s authority to the executive branch has consistently been held constitutional, so long as Congress specifies an “intelligible principle” to guide the delegate. Almost any legislative delegation passes the “intelligible standards” requirement, so even broadly phrased standards have been upheld
Legislative Commandeering
Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or administer a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly. However, through the use of the taxing and spending powers, Congress may encourage state action that it cannot directly compel.
EQUAL PROTECTION
The Equal Protection Clause of the Fourteenth Amendment provides that “no state shall…deny to any person within its jurisdiction the equal protection of the laws.” This clause applies only to states and localities. Although there is no federal equal protection clause, the Supreme Court has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause, thereby making discrimination by the federal government subject to review under the same standards as discrimination by the states. When reviewing government action under equal protection theories, the Court applies one of three levels of review, depending on the classification of persons or the type of right concerned.
The strict scrutiny test is applied if a fundamental right or a suspect classification is involved. The suspect classifications are race, ethnicity, national origin, and, if the classification is by state law, alienage. To satisfy strict scrutiny, the law must be the least restrictive means to achieve a compelling government interest.
Intermediate scrutiny is used when a classification is based on gender or status as a non-marital child. To be constitutional, the law must be substantially related to an important government interest. Note that in gender cases, there must be an “exceedingly persuasive justification” for the classification
A law passes the rational basis standard of review if it is rationally related to a legitimate state interest. This is a test of minimal scrutiny. Laws are presumed valid under this standard, so the burden is on the challenger
Congressional Takings
The Takings Clause of the Fifth Amendment acts as a check on this power. It provides that private property may not “be taken for public use, without just compensation.” The Fourteenth Amendment Due Process Clause makes the Takings Clause applicable to the states. Generally, a governmental regulation that adversely affects a person’s property interest is not a taking, but it is possible for a regulation to rise to the level of a taking.
In determining whether a regulation creates a taking, the following factors are considered:
(i) the economic impact of the regulation on the property owner;
(ii) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property; and
(iii) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.
Congressional Taxing/Spending Powers
Article I of the Constitution grants Congress the power to tax and spend to provide for the common defense and general welfare of the United States. All duties, imposts and excises must be uniform throughout the United States. The spending power has been interpreted very broadly. Congress has the power to spend for the “general welfare”, i.e., any public purpose, not just to pursue its other enumerated powers. Although there are areas in which Congress cannot directly regulate, it can use its spending power to accomplish such regulation indirectly by conditioning federal funding.
Free Exercise Clause
The First Amendment prohibits state action that interferes with the free exercise of religion, including both the freedom to believe and the freedom to act. The freedom to believe is absolute, and the government may not deny benefits or impose burdens based on religious belief. The government may not require affirmation of a belief, or determine the reasonableness of a belief, but it may determine the sincerity of the person asserting a belief.
Laws of General Applicability re: Effects on Religious Practice
A law of general applicability that incidentally affects religious practices will be reviewed according to a rational basis review, meaning it must only be rationally related to a legitimate government interest.
Establishment Clause
The Establishment Clause compels government neutrality towards religion. Challenges brought under this clause are generally reviewed under the “historical practices and understandings” test, which imposes a presumption of constitutionality for longstanding monuments, symbols, and practices. But courts may forego this test and apply the more stringent strict scrutiny test when the law directly impacts a religion. Under strict scrutiny, the law is invalid unless the government proves that the law is necessary (i.e., uses the least restrictive means) to achieve a compelling government interest.
Regulatory Taking
Generally, a governmental regulation that adversely affects a person’s property interest is not a taking, but it is possible for a regulation to rise to the level of a taking. In determining whether a regulation creates a taking, the following factors are considered:
(i) the economic impact of the regulation on the property owner;
(ii) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property; and
(iii) the character of the regulation, including the degree to which it will benefit society, and whether the regulation violates any of the owner’s essential attributes of property ownership.
Per se Takings
In two scenarios, a regulation results in a taking no matter what. These are called per se takings. The first is when a governmental regulation results in a permanent physical occupation of the property. The second is when a regulation results in a permanent total loss of the property’s economic value.
Dormant Commerce Clause
Congress has the power to regulate the channels and instrumentalities of interstate commerce (“ISC”), as well as any activity that substantially affects interstate commerce. The Dormant Commerce Clause (“DCC”), sometimes referred to as the Negative Commerce Clause, is a doctrine that limits the powers of states to legislate in ways that impact ISC.
Under the DCC, if Congress has not enacted legislation in a particular area of ISC, a state is free to regulate as long as the state law does not: (i) discriminate against out of state commerce, (ii) unduly burden ISC, or (iii) regulate extraterritorial (i.e., wholly out-of-state) activity.
DCC Exception: Market Participant Exception
However, a state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator. If the state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business.
Article IV Privileges and Immunities
If an action discriminates against out of state citizens with respect to fundamental rights or essential activities, such as commercial activities, then the law is unconstitutional unless the state can show: (i) a substantial justification for the differential treatment; and (ii) that the differential treatment bears a substantial relationship to the state’s objective.
Substantive Due Process
The SDP Clause of the 14th Amendment guarantees that individuals will not be subject to laws that are arbitrary or capricious in nature. If the law infringes on a non-fundamental right, the court will apply the rational basis test
Fix Re: Themis Outline rule
Parol Evidence Rule
Under the PER, evidence of prior or contemporaneous negotiations and agreements, written or oral, that contradict or modify contractual terms is inadmissible to vary the terms of the contract as written. The first step is to determine whether the written contract is intended as the final agreement of the parties (i.e., an integration). A total integration is a writing that completely expresses all of the terms of the parties’ agreement. A partial integration is a writing that sets forth the parties’ agreement about some, but not all, terms.
Expectation Damages
Expectation damages are those damages that put the non-breaching party in the same position he would have been in had the breach not occurred. In general, a party who substantially performed her contractual obligations can recover the contract price minus any amount that it will cost the other party to obtain the promised full performance.
Adequacy of Specific Performance
For the court to grant the equitable remedy of specific performance, there must be
(I) an inadequate legal remedy,
(II) definite and certain terms in a valid contract,
(III) feasibility,
(IV) mutuality, and
(V) no defenses.
Review w/Themis Outline
Statue of Frauds
The SOF requires contracts for the sale of goods for $500 or more to be in writing and signed by the party to be charged.
The following categories of contracts are required to be in writing: (i) marriage, (ii) suretyship, (iii) contracts that cannot be performed within one year, (iv) land sale contracts, and (v) under the UCC, contracts for the sale of goods for over $500.
Anticipatory Repudiation
Under the UCC, in cases where the other party’s words, actions, or circumstances make it unequivocally clear that he is unwilling or unable to perform, the aggrieved party may: (i) sue immediately, (ii) suspend his own performance and wait and see until the due date, (iii) treat the repudiation as an offer to rescind and treat the contract as discharged, or (iv) ignore the repudiation and urge performance.
Consideration
In addition to offer and acceptance, most courts require valuable consideration for an agreement to be enforceable. If either party has not given consideration, the agreement is not enforceable upon formation. Valuable consideration is evidenced by a bargained-for exchange in the legal position between the parties.
Perfect Tender Rule
Under the UCC, the seller must tender goods conforming to the contract terms. If the goods are nonconforming, then the buyer has the right to accept or reject all or part of the goods. If the buyer rejects the goods, he may suspend his performance. Further, the buyer has the right to inspect the goods before deciding whether to accept or reject. The rejection is valid so long as the buyer gives notice to the seller within a reasonable time before acceptance.
Mirror Image Rule
Under the common law, acceptance must mirror the terms of the offer. Any modification of the terms of the offer, or the addition of another term not found in the offer, acts as a rejection of the original offer and as a new counteroffer.
Shareholder’s Right of Inspection
A shareholder has a right to inspect and copy corporate records upon five days’ written notice. Although a shareholder may generally inspect the main records of the corporation, such as the bylaws and articles and the minutes of shareholder meetings, the shareholder must demonstrate a proper purpose before inspecting certain records, such as the financial statements of the corporation, the accounting records of the corporation, and excerpts from minutes of any meeting of the BOD. This inspection right is usually restricted to normal business hours at the corporation’s principal place of business.
Shareholder Derivative Suit
In a derivative action, the shareholder sues on behalf of the corporation for a harm suffered by the corporation, and any recovery generally goes to the corporation.
Standing to bring the suit requires that the plaintiff be a shareholder at the time the action is filed and when the act or omission occurred that caused the harm. The plaintiff must make a written demand upon the BOD 90 days before filing unless it would be futile.
Directors’ Duty of Care
Directors have a duty to act with the care of an ordinary prudent person in a like position and similar circumstances and to make decisions in good faith. In deciding how to act, the director is required to use any additional knowledge or special skills that he possesses.
General Partnership Theory
A general partnership (“GP”) is defined as an association of two or more persons to carry on as co-owners a business for profit. There is no requirement that the parties subjectively intend to form a partnership, only that they intend to run a business as co-owners. Moreover, there are no formalities required to form a GP. Courts generally look to the intent of parties to determine whether a GP exists.
De Jure Corporation Formation
A de jure corporation is one that is formed in accordance with the law. To be valid, the articles of incorporation must be filed with the appropriate state office, which is usually the secretary of state. Upon filing the articles of incorporation, the corporation comes into existence unless the articles specify a future date to begin.
Common Law Murder
At common law, murder is the unlawful killing of a human being committed with malice aforethought. Malice aforethought exists if the defendant acts with any of the following mental states: (i) intent to kill, (ii) intent to inflict serious bodily injury, (iii) reckless indifference to an unjustifiably high risk to human life, or (iv) intent to commit certain felonies (felony murder).
Theft Crimes
Robbery is a larceny from the person or in the presence of the victim by force or intimidation. Larceny is the trespassory taking and carrying away of the personal property of another (without his consent) with the specific intent to permanently deprive the owner of the property.
Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the owner of it.
Common-law burglary is the breaking and entering of the dwelling of another at nighttime with the specific intent to commit a felony therein.
Embezzlement is the fraudulent conversion of the property of another by a person who is in lawful possession of the property
Accomplice Liability
A principal is the person whose acts or omissions are the actus reus of the crime; in other words, the perpetrator of the crime. A person is liable as an accomplice if he aids or abets a principal prior to or during the crime with the intent that the crime be committed. The accomplice is liable for the crime itself and all natural and probable consequences of the crime.
Accessory After the Fact
An accessory after the fact is one who aids a felon to avoid apprehension after the felony is committed. To be guilty, the person must know that a felony was committed.
Conspiracy
Conspiracy is an agreement between two or more people to accomplish an unlawful purpose with the intent to accomplish that purpose. Under the majority rule, there must be an overt act in furtherance of the conspiracy. The agreement need not be a formal document, or even in writing; an oral agreement is sufficient. An agreement need not be specifically articulated but can be inferred from a concerted action by the defendants.
Fifth Amendment
A suspect has a constitutional right not to be compelled to make incriminating statements in the police interrogation process. Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at trial unless the police informed the suspect of his Miranda rights. An incriminating statement can be a confession or an inculpatory statement, and is subject to suppression even if the defendant intended the statement to be exculpatory.
Custodial interrogation is questioning initiated by a known law enforcement officer after a person has been taken into custody. Miranda warnings inform the defendant of his right to remain silent and the right to an attorney.
Self-Defense + Defense of Others
One who is not the aggressor is justified in using reasonable force against another person to prevent immediate unlawful harm to himself. The harm to the defendant must be imminent, and not a threat of future harm. Deadly force may be justified in self-defense when it is reasonably necessary to prevent death or serious injury.
A person has the right to defend others under the same circumstances in which self-defense would be acceptable. Defense of others is not limited to defending family members but extends to anyone the defendant reasonably believes has the right of self-defense. A defendant may use non-deadly force to resist an unlawful arrest, but never deadly force. Some jurisdictions do not permit the use of force at all and require defendants to seek legal redress for an unlawful arrest.
Fourth Amendment Search and Seizure
The 4th Amendment protects persons against unreasonable arrests or other seizures as well as unreasonable searches. In addition, when a warrant is required, it must comply with these constitutional requirements.
Only unreasonable searches and seizures are subject to the 4th Amendment. A search occurs when governmental conduct violates a reasonable expectation of privacy. Although, under the 4th Amendment, stopping a car constitutes a seizure of the driver and any passengers, there is a lesser expectation of privacy with regard to the automobile and its contents than with a home. Even so, officers must have an articulable, reasonable suspicion of a violation of the law in order to stop an automobile.
Valid Search Warrant Requirements
When a search occurs, a warrant serves to protect a person’s privacy interest against unreasonable governmental intrusion. A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the places to be searched and the items to be seized.
Exceptions to the Warrant Requirement
SILA
Stop & Frisk
Exigent Circumstances
Automobile Exception
Plain-view
Consent
Administrative
Fifth Amendment Right to Counsel
To invoke the right to counsel under the 5th Amendment, the defendant must make a specific, unambiguous statement asserting his desire to have counsel present. If a suspect makes an ambiguous statement regarding his right to counsel, police are not required to end the interrogation or to ask question to clarify whether the suspect wants to invoke the right. However, once the right to counsel is invoked, all interrogation must stop until counsel is present.
Sixth Amendment Right to Counsel
The 6th Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when the State initiates prosecution with an indictment or formal charge and ends at the sentencing stage of trial. A defendant is entitled to have counsel present at any post-indictment lineup in which the defendant is required to participate.
Exclusionary Rule
Evidence obtained in violation of the Fourth Amendment is inadmissible - applicable to the states through the Fourteenth Amendment.
Attempt
A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. An attempt therefore consists of two elements: a specific intent to commit a crime and a substantial step toward the commission of the crime. A substantial step goes beyond mere preparation; it must be in furtherance of the crime. This is the majority and MPC rule, but some states continue to apply the common law’s dangerous-proximity test, which requires the defendant to come dangerously close to success.
Assisting Unauthorized Practice of Law
Under the ABA Model Rules (“MR”) and the CRPC, a lawyer must not knowingly assist a person who is not admitted to the bar in the unauthorized practice of law. The non-lawyer who engages in the unauthorized practice of law will be subject to civil and criminal penalties, but will not be subject to discipline under the ethics rules. A lawyer who engages in the unauthorized practice of law or assists a non-lawyer in unauthorized practice may be subject to civil and criminal penalties and is subject to discipline under the ethics rules.
Lawyer’s Duty to Supervise Nonlawyers
Under the Model Rules and the CRPC, a lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to the ethics rules.
Duty Not to File Frivolous Claims
The MR prohibit lawyers from bringing or defending a proceeding, or asserting or opposing an issue in a proceeding, unless there is a basis in law and fact for doing so that is not frivolous.
Under the CRPC, a lawyer must not present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good-faith argument for an extension, modification, or reversal of such existing law.
Lawyer’s Duties Regarding Communication with Represented Persons
Under the Model Rules, in the case of a represented organization, a lawyer is prohibited from communicating with a constituent of the organization who has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
Under the CRPC, in the case of a represented organization, a lawyer is prohibited from communicating with (i) a current officer, director, partner, or managing agent of the organization or (ii) a current employee, member, agent or other constituent of the organization if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.
Duty of Competence
Under the Model Rules, a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
The CRPC require that a lawyer not intentionally, recklessly, or repeatedly fail to perform legal services with competence.
Duty of Loyalty
Lawyers owe clients a basic duty of loyalty and independent professional judgment. When a lawyer’s independent professional judgment is potentially compromised by a nonclient interest (i.e., a conflict of interest exists), the lawyer may be in breach of the duty of loyalty. A conflict of interest may arise between the lawyer and the client, current clients, current and prospective clients, current and former clients, or between current clients and third parties.
Duty of Confidentiality
Under the Model Rules, a lawyer is prohibited from disclosing information relating to the representation of a client, unless the client gives informed consent; the disclosure is impliedly authorized in order to carry out the representation; or other specific exceptions apply.
A California lawyer is required to “maintain inviolate the confidence, and at every peril to himself to preserve the secrets of the client.” Additionally, a California lawyer must not reveal any confidential information unless the client gives informed consent or the lawyer reasonably believes the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to an individual.
Conflict of Interest
A conflict of interest (COI) arises when there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or the interests of another current or former client. Under both the MR and CA RPC, if there is a concurrent COI, a lawyer may undertake representation if
(i) the lawyer reasonably believes that he can competently and diligently represent each affected client,
(ii) it is not prohibited by law,
(iii) it does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case or other proceeding before the tribunal, and
(iv) each affected client gives informed consent, confirmed in writing (MR) or informed written consent (CA).
Split into two cards
Duty to Communicate
Lawyers have a duty to communicate with clients, to keep them reasonably informed of the status of the matter, and to respond to their reasonable requests for information so that they can make informed decisions.
Inadvertent Disclosure
Under the MR, a lawyer who receives a document relating to the representation of the lawyer’s client and who knows or reasonably should know that the document was inadvertently sent must promptly notify the sender. However, under the CRPC, where it is reasonably apparent to a lawyer that a writing was inadvertently sent, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer shall (i) refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine, and (ii) promptly notify the sender. Additionally, the lawyer should return the writing to the sender, try to reach an arrangement with the sender, or seek guidance from a tribunal.
Duty of Candor (to the court)
A lawyer must not
(i) knowingly make a false statement of fact or law to a tribunal or
(ii) fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, and the lawyer must not offer evidence that she knows to be false.
Scope of Representation
The client decides the objectives and goals of the representation. As the client’s agent, the lawyer must abide by those decisions (within some constraints) but has the authority to determine how best to achieve those objectives. Moreover, a client has no constitutional right to compel his lawyer to assert issues if the lawyer decides not to press those issues as a matter of the lawyer’s professional judgment.
Screening
Under the MR, any COI that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee,
(ii) written notice is given to any affected former client to enable the former client to ascertain compliance with ethical rules, and
(iii) certification of compliance with ethical rules and with screening procedures is provided to the former client by the screened lawyer and by a partner of the firm at reasonable intervals upon the former client’s written request and upon termination of the screening procedures.
Reasonableness of Fees
Under the MR, fees must be reasonable based on the circumstances which include factors such as the time, labor, and skill required to perform the work.
In California, fees must not be unconscionable, which is judged by factors including (among others) overreaching, whether the fee is proportionate to the value of services performed, and the relative sophistication of the lawyer and the client.
Valid Conveyance
A valid conveyance requires deed formalities, delivery, and acceptance.
Joint Tenancy
A JT exists when two or more persons own property with the right of survivorship. In addition to the right of survivorship, each joint tenant must have an equal right to possess or use the property (unity of possession), each interest must be equal to the other interests (unity of interest), and each interest must have been created at the same time (unity of time) and in the same instrument (unity of title).
Adverse Possession
For possession of land to ripen into title, i.e., to adversely possess the property, the possession must be hostile, open and notorious, actual and exclusive, and continuous for the statutory period.
Tenancy for Years
A tenancy for years is an estate measured by a fixed and ascertainable amount of time. The Statute of Frauds applies to a tenancy for years that is longer than one year. As a result, the lease must be in a writing that satisfies the Statute—i.e., that identifies the parties, identifies the premises, specifies the duration of the lease, states the rent to be paid, and is signed by the party to be charged.
Termination of a tenancy for years occurs automatically upon the expiration of the term. Termination may also occur before the term expires, either by agreement of the parties or by a party exercising her right to terminate the lease due to the landlord’s breach of a leasehold covenant. The tenant has the duty to pay rent, subject to two major exceptions—i.e., destruction of the premises, or a material breach by the landlord.
Express Easement
An express easement arises when it is affirmatively created by the parties in a writing that satisfies the requirements for a valid deed, which includes the signature of the grantor of the easement (i.e., servient estate holder). The scope of an easement is defined in the first instance by its terms.
Easements are presumed to be appurtenant (i.e., tied to the land) unless there are clear facts to the contrary. The benefits of an easement must correspond directly to the use and enjoyment of the possessor of the dominant estate. Most easements are affirmative. An affirmative easement gives the dominant estate holder the right to make affirmative use of the servient property.
General Warranty Deed
A general warranty deed contains three present covenants that are only breached at the time of conveyance (Covenant of Seisin, Right to Convey, and Covenant Against Encumbrances) and three future covenants that are breached upon disturbance of the grantee’s possession (Covenant of Quiet Enjoyment, Covenant of Warranty, Covenant of Further Assurances).
Fee Simple Subject to Condition Subsequent
A fee simple subject to condition subsequent (FSSCS) is a present fee simple interest that is limited in duration by specific conditional language. The conveyance must explicitly state that upon the occurrence of the condition, the grantor has the right to terminate the estate. The grantor’s right is called a right of re-entry. The FSSCS is freely alienable by an owner during his life, and upon his death is devisable and descendible. However, if the stated condition occurs, then the FSSCS will terminate if and when the grantor affirmatively demonstrates the intent to terminate by re-entering the property or bringing an action to recover possession of it.
Restraint on Alienation
A restraint on alienation is a restriction on transferring property. Direct restraints on alienation (e.g., restrictions that prohibit some or all types of transfers) are disfavored and are valid only if they are deemed reasonable. To determine reasonableness, courts weigh the utility of the restraint against the harm resulting from its enforcement. If the restraint is unreasonable, then it is rejected, and the property is alienable. If the restraint is reasonable, then any attempt to alienate the property in violation of the restraint is null and void.
Private Nuisance
A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of land. Anyone with possessory rights in real property, or members of that person’s household, may bring a nuisance claim.
Public Nuisance
A public nuisance is an unreasonable interference with a right common to the general public—i.e., health, safety, or property rights of the community. A private-party plaintiff can recover on a public nuisance claim only if her harm differs in kind from that suffered by members of the general public.
Laches
Laches is the unreasonable delay by the party in bringing a claim that caused prejudice to the other party. It is a defense to both private and public nuisance.
Trespass to Land
Trespass to land occurs when the defendant’s intentional act causes a physical invasion of the land of another. The defendant need only have the intent to enter the land (or to cause a physical invasion), not the intent to commit a wrongful trespass.
Prescriptive Easement
An easement is the right held by one person to make specific, limited use of land owned by another. An easement by prescription requires that the use be continuous, actual, open, and hostile for a specific statutory period. A majority of jurisdictions rebuttably presume that a use that meets the other requirements is hostile (i.e., non-permissive).
Recission of Contract
Rescission is the unmaking of a contract so as to put the parties in the place they would have been in if the contract had never existed. A court will only grant rescission if the party has the grounds to seek it and if there are no defenses to the granting of it.
Mutual Mistake
A mutual mistake occurs when both parties are mistaken as to an essential element of the contract. In said case, the contract may be voidable by the adversely affected party if
(i) the mistake existed at the time of contract formation,
(ii) it relates to a basic assumption of the contract,
(iii) it causes a material impact on the transaction, and
(iv) the adversely affected party did not assume the risk of the mistake.
Unilateral Mistake
A unilateral mistake occurs when one of the parties is mistaken as to an essential element of the contract, and the mistaken party may seek to void the contract if
(i) the elements for a mutual mistake exist;
(ii) either enforcement of the contract would be unconscionable or the non-mistaken party caused the mistake, had a duty to disclose or failed to disclose it, and knew or should have known that the other party was mistaken; and
(iii) there must be an absence of serious prejudice to the other party if rescission is granted.
Fraud/Intentional Misrepresentation
To have a viable claim for fraud (i.e., intentional misrepresentation), the plaintiff must
(i) show that the defendant knowingly or recklessly misrepresented a material fact
(ii) with the intent to induce the plaintiff’s reliance, and
(iii) that the plaintiff justifiably relied on the defendant’s misrepresentation and
(iv) suffered monetary loss.
Promissory Estoppel
Promissory estoppel is an equitable doctrine that can be used to enforce a promise that is not supported by consideration. Under this theory, a promise is binding if reliance upon a promise was reasonably foreseeable, there was actual inducement or forbearance, and detrimental reliance such that injustice can be avoided only by enforcement of the promise.
Reformation of Contract
Reformation is the modification of a contract by a court upon petition by a party. For a court to order reformation of a contract, there must be
(i) a valid agreement,
(ii) proper ground for reformation, and
(iii) No defenses to the granting of it.
Consequential Damages
Consequential damages are reasonably foreseeable losses to a nonbreaching party that go beyond expectation damages, such as loss of profits. Consequential damages are recoverable if they were the natural and probable consequences of breach, if they were contemplated by the parties at the time the contract was made, or if they were otherwise foreseeable.
Reliance Damages
In lieu of expectation damages, reliance damages may be recovered if a non-breaching party incurs expenses in reasonable reliance upon the promise that the other party would fulfil. Unlike restitution, with reliance damages, there is no requirement that the defendant benefit from the plaintiff’s expenditures, and it may not exceed the full contract price. Typically, reliance damages are only available when the plaintiff cannot prove a profit would have been made on the contract, or when the contract would have produced a loss.
Restitution
When a defendant is unjustly enriched by a plaintiff, restitution generally allows the plaintiff to recover on the benefit conferred by the plaintiff upon the defendant. Generally, this benefit may be measured by either the reasonable value of the plaintiff’s services, the cost to the plaintiff in conferring the benefit, the increase in the defendant’s wealth from having received that benefit, or the price fixed in the agreement between the plaintiff and defendant.
Punitive Damages
Punitive damages are meant to punish the defendant who engages in serious misconduct with an improper state of mind. While they are generally not available in breach of contract actions, they may be awarded if the defendant’s behavior also constitutes tortious conduct. Pursuant to the Due Process Clause, punitive damages cannot be grossly excessive.
Defamation
Defamation requires a defamatory statement of or concerning the plaintiff, published to a third party who understands its defamatory nature, that damages the plaintiff’s reputation.
If plaintiff is a public figure, he must prove actual malice which requires a showing of knowledge that the statement was false, or a reckless disregard as to whether it was false. If the plaintiff is a private figure, then he need only prove negligence regarding the falsity of the statement.
IIED
A defendant is subject to liability to the plaintiff for the intentional infliction of emotional distress if the defendant,
(i) by extreme and outrageous conduct,
(ii) intentionally or recklessly causes the plaintiff
(iii) severe emotional distress.
Public figures must also prove publication of a false statement made with actual malice to recover for IIED.
Negligence
Negligence requires a showing of a duty, breach, actual and proximate cause, and damages.
Strict Liability - Abnormally Dangerous Activities
A person may be strictly liable for harm caused by his performance of an abnormally dangerous activity (ADA). An ADA is an activity that creates a foreseeable and highly significant risk of harm even when reasonable care is exercised and is not commonly engaged in by the community.
Strict Products Liability
The seller (manufacturer, retailer, or distributor) of a defective product may be strictly liable in tort for any injuries caused by that product.
To recover, the plaintiff must
(i) plead and prove that the product was defective (in manufacture, design, or failure to warn),
(ii) the defect existed when the product left the defendant’s control, and
(iii) the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way (i.e., actual and proximate causation).
Defense: Contributory and Comparative Negligence
At common law, a plaintiff’s contributory negligence barred his right to recover, even if the degree of the defendant’s negligence was much greater than that of the plaintiff. Contributory negligence has been almost abolished and most jurisdictions follow either modified or pure comparative negligence. In such jurisdictions, a plaintiff’s contributory negligence is typically not a complete bar to recovery but may reduce the amount of recoverable damages.
Defense: Assumption of Risk
Assumption of the risk is a complete bar to recovery in contributory-negligence jurisdictions and a minority of comparative-fault jurisdictions. In most comparative-fault jurisdictions, assumption of the risk merely reduces recovery. The defense requires that the plaintiff voluntarily and knowingly assumed the risk.
Congressional Regulation of Expressive Conduct
A law regulating expressive conduct will be upheld if
(i) the regulation is within the government’s power to enact,
(ii) it furthers an important governmental interest,
(iii) the governmental interest is unrelated to the suppression of ideas, and
(iv) the burden on speech is no greater than necessary.
Pereira and Van Camp Formulas
Pereira: An increase in value of an SP business attributable to personal skills/effort of the managing spouse favors CP. SP = (V)alue of business @ marriage + ((V) x 10% x (Y)ears of Marriage)
CP = FMV of business @ divorce - SP
Van Camp: Increase in SP business value is from character of SP business, favors SP.
CP = (Reasonable value of (S) ervices - Annual family (E)xpenses) x (Y)ears of Marriage
SP = FMV of business @ divorce - CP
Reverse Van Camp and Pereira
When the value of an SP business appreciates after during separation but before division, use the reverse formulas.
Pereira: CP = V + (V x 10% x Y); SP = FMV - CP
Van Camp: SP = S - SPExpenses paid during separation; CP = FMV - SP
Business Judgment Rule
A rebuttable presumptiion that the director of a corporation reasonably believes their actions are in the best interest of the corporation. Can be overcome by showing the officer did not show objerctivity or independence fromm the director’s relation to or control by another having a matieral interest ini the challenged conduct OR the director financially benefited in a way they were not entitled.
