Wrong Rules

Question 1

4 Categories of activities which Congress can constitutionally regulate under the Commerce Clause

Answer 1

1. channels of interstate commerce
2. Instrumentalities of interstate commerce
3. Articles moving in interstate commerce
4. Activities having a substantial effect on interstate commerce.

Question 2

If a law creates a classification then use

Answer 2

Equal Protection, not Due Process

Question 3

Commercial speech, if not misleading or concerning unlawful activity is under what scrutiny?

Answer 3

Intermediate Scrutiny

So Substantial governmental interest that is reasonably tailored to achieve that objective.

Question 4

Congress’ Spending Power is linked to its

Answer 4

General Welfare and has plenary power to spend so long as their choice can reasonably be said to serve the general welfare and not violate any prohibition in the Constitution

Question 5

Taxpayers generally don’t have standing except

Answer 5

When the challenged federal spending violates the Establishment Clause of the First Amendment

Question 6

Intentional and Reckless infliction of emotional distress:

Answer 6

1. Intentional or reckless disregard for the consequences
2. Extreme and outrageous conduct
3. Which caused severe emotional distress.

Question 7

Public nuisance can be raised by a private party if

Answer 7

The public nuisance causes a unique harm to the P that differs from the general harm to the public. Remedy is usually damages

Question 8

Even with vicarious liability can still be indemnified if:

Answer 8

You are found 0% negligent and your employee was 100% negligent

Question 9

A party is not entitled to depose what kind of experts?

Answer 9

Consulting experts- those who are retained in anticipation of litigation, but will not testify at trial.

Question 10

Under a notice statute, who prevails over a prior grantee who failed to record?

Answer 10

A subsequent BFP- a person who gives valuable consideration and has no notice of the prior grantee

Question 11

Reformation is a proper remedy when

Answer 11

The writing incorrectly summarizes the parties’ joint understanding (ex. clerical error), not when the parties fundamentally disagree on what the deal is.

Question 12

A witness cannot be compelled to provide potentially incriminating testimony unless

Answer 12

The witness is granted use and derivative-use immunity.

Question 13

Battery is caused by an intentional harmful or offensive touching of a person or ____ without consent or privilege.

Answer 13

an extension of the person

Question 14

Defenses which must be presented in the first pre-answer motion, or if no pre-answer motion then in the answer are:

Answer 14

Lack of personal jurisdiction, improper venue, insufficient process, and insufficient service

Question 15

A Doctor’s license is _____

Answer 15

property within the meaning of the 14th amendment

Question 16

Assignment of contractual rights are effective even if the contract prohibits assignments unless

Answer 16

1. The clause makes assignments “void” or

2. The assignee had notice

Question 17

State courts are courts of ____ jurisdiction

Answer 17

General jurisdiction and have concurrent jurisdiction to decide federal questions

Question 18

Admission of a party opponent is admissible to:

Answer 18

1. impeach the defendant AND
2. as substantive evidence

Definition: a statement made by a party cannot be excluded as hearsay when offered against him by the opponent if the statement is probative.

Question 19

In a notice jurisdiction, will a Subsequent bona fide purchaser prevail over an unrecorded interest, even if the BFP also didn’t record?

Answer 19

Yes.

Question 20

Estoppel by Deed –

Answer 20

If grantor conveys title to real property before he owns it, the title will automatically vest in the grantee as soon as grantor acquires title.

Question 21

Race-Notice Statute Jurisdiction→

Answer 21

a subsequent bona fide purchaser (no notice + pays value) is protected ONLY IF he records before the prior guarantee.

Question 22

Race Statute Jurisdiction→

Answer 22

whomever records first prevails (notice is irrelevant).

Question 23

Notice Statute Jurisdiction→

Answer 23

a subsequent bona fide purchaser (no notice + pays value) will prevail over a prior grantee that failed to record.

Question 24

Sub-lessee

Answer 24

when a tenant (sublessor) transfers ONLY SOME of his remaining lease interest.
− Tenant may freely sublet UNLESS a provision in the lease states otherwise.
-Sublessee is NOT liable to the landlord for rent or other covenants (there is no privity of estate).
− Sublessor (original tenant) remains liable to landlord for rent (privity of contract).

Question 25

Assignment of a Lease

Answer 25

– when a tenant transfers ALL of his remaining lease interest to a third-party.
− A lease may be freely assigned UNLESS the lease states otherwise.

Liability for Rent / Breach:
− Assignee→liable to the landlord for rent and all
other covenants that run with the land (privity of
estate).
− Assignor (Original Tenant)→also remains
liable for rent to the landlord (privity of contract).

Question 26

Nonexclusive Profit-

Answer 26

The grantee of such a profit cannot convey any profit rights to a third party unless agreed to by grantor.

Question 27

A cotenant who makes ____ repairs to property usually may recover from a non-contributing cotenant

Answer 27

Necessary repairs. Cannot recover if it was just improvements even if it raised the value of the land.

Question 28

Easement Repairs

Answer 28

Holder of easement has the right to repair and improve it whenever reasonably required for use. Liable for any negligent damages.

Question 29

Overburdened Easement

Answer 29

An easement is overburdened any time that it is used to benefit land other than the dominant parcel.

Question 30

Profit

Answer 30

Easement right to come onto land and remove property. Not a license because there are no limitations on the right to remove property.

Question 31

When personal property/equipment is affixed to real property in a leasehold it becomes real property but,

Answer 31

It is presumed that the parties did not intend for the easily detachable fixture to be incorporated into the property

Question 32

Encumbrances and foreclosure

Answer 32

Take free of junior encumbrances to the mortgage after foreclosure, but still subject to any encumbrances senior to the mortgage.

Question 33

Murders are:

Answer 33

1. Murder with intent to kill
2. Murder with intent to inflict serious bodily harm
3. Depraved-heart murder
4. Felony murder
   FIGS

Question 34

What is never sufficient alone to be sufficient provocation?

Answer 34

Words

Question 35

Obtaining money by false pretenses

Answer 35

(1) obtain title, (2) to personal property of another, (3) through an intentional false statement of material fact, (4) with intent to defraud.

Question 36

Larceny by Trick

Answer 36

obtain possession (not title) of the personal property of another by trick or deception

Question 37

Kidnapping –

Answer 37

is the (1) confining, restraining, or moving of a person, (2) without authority of law.
− MPC→abducting another person: (a) for ransom; (b) to facilitate a felony; (c) to inflict bodily injury or terrorize; OR (d) to interfere with a government/political function.

Question 38

At common law what crimes are sufficient for burglary?

Answer 38

BRAKERS AND Larceny

Question 39

Subcontractor/Contractor

Answer 39

1. Offers, even those supported by no consideration can be irrevocable where there was ddetrimental reliance.
2. Genearl contractor is not free to delay acceptance after awarded teh general contract. Cannot reopen bargaining with he subcontractor, will lose thhe power to accept the sub-contractor’s bid

Question 40

Silence cannot equal an acceptance of a contract unless

Answer 40

The offeror grants the offeree power to accept by silence.

Question 41

Promissory Estoppel (2)

Answer 41

1. Substitute for consideration

2. Rarely applied absent an unconscionable result.

Question 42

JMOL standard:

Answer 42

Find that no reasonable jury could reach a result different from that reached by the judge. i.e. reasonable minds could not differ as to which party should prevail.

Question 43

If a Jury verdict is inconsistent

Answer 43

If the answers are inconsistent with each other and on or more is also inconsistent with the general verdict, court must direct the jury to further consider its answers and verdict, or must order a new trial.

Question 44

In order to show that there is a genuine dispute of material fact ___ is not enough for summary judgment standard

Answer 44

Mere re-assertion of a denial of facts contained in the answer.

Question 45

Filing for a motion of a new trial standard:

Answer 45

1) OUTSIDE prejudicial information was improperly brought to the jury’s attention,
2) outside influence was improperly brought to bear on the jury,
OR
3) a mistake was made in entering the information on the verdict sheet

Question 46

A renewed motion for judgment as a matter of law may renew the motion after the verdict but____

Answer 46

… only on the grounds made in the motion for judgment as a matter of law during the trial.

Question 47

Harmless error rule

Answer 47

Permits an appellate court to deny relief, despite finding error unless the error had an impact on the outcome of the proceeding.

Question 48

In disclosure, there is a duty to correct a statement made in a _____ but no duty to correct a statement in a _____

Answer 48

Answer….. Deposition.

Question 49

Privilege against self-incrimination extends only to

Answer 49

testimonial or communicative communications.

Question 50

The standard for restricting commercial speech:

Answer 50

The law is narrowly tailored to serve a substantial government interest.

Question 51

Can a judge testify in a trial over which he is proceeding over?

Answer 51

No

Question 52

Who is liable under a mortgage assumption?

Answer 52

Assumption of a Mortgage → may be express or implied.
If a buyer “assumes” the mortgage, he is primarily and personally liable on the mortgage.
− Seller remains secondarily liable.

− Express Mortgage Assumption – occurs if there is an express agreement for grantee to (1) take the real property, AND (2) continue making mortgage payments.

− Implied Mortgage Assumption (only allowed in a few states) – occurs if: (1) no express agreement exists; (2) grantee/buyer pays the seller only the equity in the home; AND (3) grantee continues to make payments to the lender on the balance of the mortgage.

Assumption with novation is when the new buyer is the only one liable.

Question 53

Can’t introduce evidence that a person was insured is generally not admissible to prove they acted negligently or wrongfully but for other purposes is ok.

Answer 53

Other purposes include motive. Past conduct cannot be admitted to prove a propensity to engage in such conduct u can be admitted on the issue of motive.

Question 54

Invasion of privacy tort:

Answer 54

Someone intentionally intrudes into the solitude or seclusion of another’s life in a highly offensive manner.

Does not require publication (as defamation does) nor is truth a defense.

Question 55

Declarations against interest does not permit the testimony about statements implicating____ only _____

Answer 55

others only those remarks that are self0incriminatory.

Question 56

Contradictory evidence (CRIB PIC_ is not admissible where its sole function is to contradict testimony on ________

Answer 56

collateral issues instead of a material issue in the case.

Question 57

UCC generally an assignment under a sales contract also operates as a delegation of duties except for ___

Answer 57

When the purpose of the assignment is a financing arrangement, only the assignor’s rights are transferred and there is no intent for a delegation of duties.

Question 58

Options for purchase of real property are enforceable if there is _____

Answer 58

CIA Notice

Question 59

There is no constructive notice if the recording was _____

Answer 59

in the wrong chain of title

Question 60

A _____ defendant may introduce character evidence to raise an inference that his character was inconsistent with the crime charged

Answer 60

Criminal (not civil)

Generally, evidence of a person’s character or a trait of his character generally is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion but this is one of those exceptions.

Question 61

If trespasser can demonstrate unintended trespass was _____ then she will not be liable for any resulting damages

Answer 61

reasonable under the circumstances

Question 62

Lost profits of an unestablished business are:

Answer 62

too speculative and uncertain to be measured.

Question 63

Any party who shares control of the premises or item to be searched may provide valid consent to search, however when the two parties who share such control are both presents at the time the state actor requests consent,

Answer 63

both must consent for the search to be valid.

In other words, one party’s consent cannot trump the other’s when both are present.

Question 64

In an IIED claim physical injury is not required if the conduct causing it is____ and the conduct must be substantially certain to result in ______

Answer 64

Conduct is extreme or outrageous
Severe emotional distress (not mere embarrassment)
SAD CEO

Question 65

Common law kidnapping requires:

Answer 65

Asporation (transporting)

Question 66

In UCC if the price is left blank then

Answer 66

a reasonable price will be implied by the courts.

Unenforceable if it is common law because it is an essential term.

Question 67

In an Impleader must have

Answer 67

derivative claim, not an independent claim.

Improper impleader is when you try to shift liability over to a third party.

Question 68

State tax will survive a Commerce Clause if:

Answer 68

it is applied to an activity with a substantial nexus within the taxing state, is fairly apportioned among states that might levy a tax on the same business activity, does not discriminate against interstate commerce, and is fairly related to the services provided by the state.

Question 69

Guest statute-

Answer 69

protects the guest’s hosts from claims of ordinary negligence, but does not protect the negligence of other drivers or defective manufacturers.

Question 70

Clergy privilege protects:

Answer 70

the person seeking spiritual advice

Question 71

Larceny by trick

Answer 71

he fraudulently induced the person to surrender possession but not title.

Question 72

Independent contractor

Answer 72

generally not liable for the torts of an independent contractor unless he actively oversees the operation
Exception: whether the IC undertakes a non-delegable duty, such as the duty of a municipality to keep its streets in repair, duty to afford lateral support to adjoining land, and duty to refrain from obstructing or endangering the public highway.
Exception: Can be negligent in hiring

Question 73

Modern Restatement of Unilateral K acceptance and revocation

Answer 73

when offeree begins performance, the offer becomes an option which the offeror cannot revoke for a reasonable period of time

Common Law: Unilateral contract offer invites an acceptance of that offer only by a completed act

Question 74

Assignment vs. Delegation –

Answer 74

assignment is a transfer of a right or benefit; a delegation is the transfer of a duty.

Question 75

Declaration against interest is admissible only:

Answer 75

PUMP
P – that the OOC declarant knowingly made statement against declarant’s own
3P interest:
P – PENAL interest
P – PEcUNIARY interest ($) P – PROPRIETARY interest
U – that the OOC declaration was made by person who is MR. POD UNAVAILABLE at trial
M – that when the declaration was made, the declarant had no MOTIVE to misrepresent the facts;
AND P – that the declarant had PERSONAL knowledge of facts asserted

Question 76

Where a bilateral contract for work in exchange for payment is silent on conditions :

Answer 76

contract law infers that the party promising to do the work must fully perform before he is entitled to payment.

It’s a constructive condition not an express one.

Question 77

Learned Treatise Exception

Answer 77

If the court finds a publication to be a reliable authority, then “statements” may be read into evidence, but that the publication may not be received as an exhibit.

Question 78

Attempt –

Answer 78

when a person (1) had specific intent to commit a crime, AND (2) took an overt act sufficiently beyond mere preparation (most states & MPC = a “substantial step”; minority of states = proximate or dangerously proximate).
− Attempt merges with the underlying crime.

Question 79

Severance of a joint tenancy:

Answer 79

4 ways G SAM
G- Giving it away during life
S- By SIGNING a contract for sale,
A- by an ACTUAL judicial sale by a judgment lien creditor OR
M- granting a MORTAGE in a TITLE THEORY state.

*Cannot be severed by a will

Question 80

In a 6 person jury:

Answer 80

It is valid however, the verdict has to be unanimous where only a 6-person jury is used.

Question 81

Dying Declarations

Answer 81

Reasonably think they are going to die
Only available in Homicide prosecutions and civil cases.
Also, the declarant has to be MR POD unavailable.

Question 82

Excited Utterance

Answer 82

“relates to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition”

Declarant does not have to be unavailable.

Question 83

Search Incident to Arrest –

Answer 83

police may search a suspect’s person + “wingspan”.
− If arrested in an automobile → wingspan includes the passenger’s compartment and any containers found in the car (if reason to believe it contains contraband).

Question 84

Transfer Subject to a Mortgage→

Answer 84

If a buyer takes real property subject to a seller’s mortgage, he is NOT personally liable on the mortgage.
− BUT, a duly recorded mortgage remains on the land, and mortgagee (lender) may foreclose on the mortgage.

Question 85

Regulatory Taking –

Answer 85

Property becomes economically unviable due to a regulation. Courts determine whether a regulatory taking occurs by analyzing:
− Penn Central factors→(1) economic impact of regulation on claimant; (2) extent of interference with the investment-backed expectations; and (3) character of regulation.
*Sup. Ct. has upheld zoning laws when the govt. reasonably concluded that the health, safety, morals, or general welfare would be promoted.

Question 86

Can a judge instruct a jury to find a fact in a criminal case, even if it is a fact that is subject to judicial notice?

Answer 86

No. a judicially-noticed fact in a criminal case allows the court to instruct on a permissible inference, but nothing more. Not required to accept as conclusive any fact judicially noticed.

Question 87

Offers of compromise

Answer 87

FRE Excludes “evidence of conduct or statements made in compromise negotiations” Including “conduct or statements made in the course o compromise negotiations

Question 88

Deed by estoppel is not available

Answer 88

when a grantor conveys only a quitclaim deed.

Question 89

Easement rights are unique so

Answer 89

damages would not be an adequate remedy

Question 90

An out of court statement by a declarant demonstrating intent to act in a particular way is

Answer 90

admissible as evidence that the declarant subsequently acted in accord with such a plan.

Question 91

Proof of specific instances of conduct may be offered in direct testimony when character or a trait of character of a person is

Answer 91

an essential element of a charge , claim, or defense.

Question 92

Defamation Elements – P must prove:

Answer 92

1) a false defamatory statement (a statement that
tends to harm the reputation of another);
2) of and concerning the P made by D;
3) publication by D to a third-party; AND
4) damages.

Question 93

Implied-in-Fact Contracts – A contract is created by conduct if:

Answer 93

1) The conduct is intentional; AND
2) Each party knows (has reason to know) the
other party will interpret the conduct as an agreement.

Question 94

Slander

Answer 94

Slander (an oral defamatory statement) → need to prove special damages.

− UNLESS it’s Slander Per Se- CLAMS

Question 95

Slander Per Se

Answer 95

CLAMS (slander “per se”):
C – Falsely accusing the P of committing a serious CRIME
L – Falsely stating that P has an existing (not former) communicable, LOATHSOME disease
(e.g., a sexually transmitted disease)
A – Making a false statement that ADVERSELY reflects on P’s trade or business M – Falsely accusing P of MORAL turpitude
S – Falsely accusing P of serious SEXUAL misconduct (male or female)

Question 96

Negligent infliction of emotional harm

Answer 96

Does require some physical manifestation (injury) of the emotional harm inflicted.
Not requried for intentional infliction of emotional harm (SAD CEO)

Question 97

Public Nuisance→

Answer 97

is (1) an unreasonable interference, (2) with the health, safety, or property rights, (3) of the community (a considerable amount of people or an entire community/neighborhood).
− Must show actual damages.

Question 98

Private Nuisance→

Answer 98

is (1) a substantial and unreasonable interference, (2) with a person’s use or enjoyment of her property.
− MUST be offensive, inconvenient, or annoying to a reasonable person.

Question 99

Whenever a cause of action is assigned

Answer 99

in any subsequent action by the assignee, the assignee is subject to any counterclaims (like an offset of debt previously owed) against the assignor existing before the obligor received notice of the assignment.

Question 100

Under UCC warranties and consequential damages

Answer 100

generally may be limited or excluded.

Disclaimers are proper if they are conspicuous.

Question 101

An attempt to bribe and flight after the crime are ____ to the Hearsay Rule

Answer 101

exceptions to the Hearsay Rule as evidence of consciousness of guilt. They are not hearsay.

Question 102

Surety SOF requirement

Answer 102

Does not have to be written at the time of the making of the promise, nor need it be a writing addressed to the promisee.

Question 103

If it is clear that the purpose of the condition was to benefit or protect one of the parties:

Answer 103

the language of the condition will be interpreted as if that intention had been embodied in the contract terms
(If the condition was for the benefit of that party, failing that conditions will not be held against the party benefitting over it if that party wants to be waived)

Question 104

UCC Article 2 adopts the perfect tender rule, but

Answer 104

but that rule is inapplicable to assess the conformance
of a seller’s performance under an installment contract. Because this is an installment contract, the substantial impairment standard governs the buyer’s right to reject,

Question 105

Past Recollection Recorded –

Answer 105

Is a record made on a matter the witness once knew about, but now cannot recall well enough to testify fully and accurately.
Is admissible if:
1) witness had personal knowledge at one time;
2) writing was made or adopted by the witness;
3) it was made while the event was still fresh in the
witness’s mind;
4) is accurate; AND
5) witness can no longer remember the event.
*The record may be read into evidence, BUT it can only be received as an exhibit if offered by an adverse party

Question 106

The privilege against self-incrimination applies in ____ case

Answer 106

both civil and criminal.

Question 107

Miranda Rights –

Answer 107

attach when a suspect is in a custodial interrogation.

H. Confessions & Privilege Against Self- Incrimination
Police must give Miranda warnings→(1) right to remain silent, (2) anything said can be used against suspect in court, (3) right to talk to an attorney and have one present when they are questioned, and (4) if cannot afford an attorney, one will be provided.

Question 108

Custodial Interrogation: (Miranda Warnings)

Answer 108

− Custody = the person reasonably believes they
are not free to leave.
− Interrogation = police knew (or should have
known) they were likely to elicit an incriminating response.

Question 109

Waiver of Rights (Miranda)–

Answer 109

a valid waiver must be made knowingly, intelligently, AND voluntarily.
− D must understand the nature of the right being waived and the consequence for waiving it.
− Police failure to provide outside info DOES NOT
invalidate a waiver (unless the info was essential to D’s ability to waive rights)

Question 110

a grand jury is entitled to consider ____

Answer 110

hearsay and is not limited by the exclusionary rule.

Question 111

an owner’s policy of title insurance continues to protect the owner if the owner _____

Answer 111

is ever successfully sued on a

title covenant in a future conveyance

Question 112

Defamation & Actual Malice Standard –

Answer 112

The press is afforded heightened protection under the 1st Amendment for Defamation lawsuits depending on the type of person.

Question 113

Defamation Elements – P must prove:

Answer 113

1) a false defamatory statement (a statement that
tends to harm the reputation of another);
2) of and concerning the P made by D;
3) publication by D to a third-party; AND
4) damages.

Question 114

Public Official or Public Figure Defamation → P must also prove actual malice to be successful; that Defendant spoke with either:

Answer 114

a) Recklessness; OR
b) Knowledge of its falsity.
* Proof of negligence is insufficient

Question 115

statement by a party-opponent’s agent.

Answer 115

FRE 801(d)(2)(D) provides that a statement is “not hearsay” if it is offered against a party and is “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.”

Question 116

“if a witness uses a writing to refresh memory for the purpose of testifying, either—

Answer 116

(1) while testifying, or (2)
before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse
party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness
thereon, and to introduce in evidence those portions which relate to the testimony of the witness

Question 117

Expectation Damages –

Answer 117

Arise directly from the breach, and are meant to put the non-breaching party in the same position it would have been in but for the breach.
To recover, damages must be→(1) caused by D (actual cause); (2) foreseeable (proximate cause); (3) certain (not speculative); AND (4) unavoidable (reasonable steps were taken to mitigate damages).

Question 118

Non-Hearsay –

Answer 118

If a statement is offered to prove something other than the truth of the statement, it’s not hearsay and is ADMISSIBLE.
Common Non-Hearsay Statements:
1) Verbal acts of independent legal significance.
2) To show the effect on the listener.
3) Prior inconsistent statement used to impeach.
4) Circumstantial evidence of the speaker’s state of

Question 119

Privilege s and Immunities Clause of Article IV applies to discrimination against

Answer 119

interstate travel by those entering another state who do not intend to stay in that state, but who intend to return to their domicile at the end of the journey.

Question 120

Right to indemnification

Answer 120

The right exists when the employer has been held vicariously liable, either because, in the case of the servant, the doctrine of respondeat superior applies, or, in the case of the independent contractor, because the harm resulted from a hazardous activity

Question 121

Contract Clause in the Constitution

Answer 121

The K clause limits states from unreasonably enacting laws that retroactively impair the rights and obligations of existing executory contracts. (like ex post facto but for contracts).

Question 122

Religious Freedom Restoration Act

Answer 122

Prohibits the “Government (from) substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that compelling governmental interest.

Question 123

Best Evidence Rule –

Answer 123

the original writing, recording, or photograph is required to prove its content UNLESS:
a) it’s a reliable duplicate (a photocopy);
b) all the originals are lost or destroyed, and not
by the offering party acting in bad faith;
c) an original cannot be obtained by judicial
process;
d) it was not produced after proper notice was
given to the party in control and against whom it
would be offered against; OR
e) it’s not closely related to a controlling issue

Question 124

Chain of Title –

Answer 124

shows all transfers for a piece of land. − 2 Indexes → one organized by names of grantors, and one organized by names of grantees.

Wild Deed = A deed NOT recorded properly, and thus not discoverable in the chain of title.
− A wild deed DOES NOT put subsequent purchasers on constructive notice of a land transfer.

Question 125

Authentication of Evidence –

Answer 125

All evidence MUST be authenticated before being admitted.
− Physical Evidence → through witness testimony or by evidence that shows it has been held in a substantially unbroken chain of custody.
− Voice Recordings → by anyone who has heard the person speak and identified the recorded person as the speaker.

Question 126

The grounds for objecting to an interrogatory must ______

Answer 126

be stated with specificity. Any ground not stated in a timely objection is waived unless the court excuses the failure for good cause.

Question 127

Parol Evidence Rule – (Definition and 4 exceptions)

Answer 127

A party CANNOT introduce a prior or contemporaneous agreement (oral/written) that contradicts a later written contract.
Exceptions:
1) To correct a clerical error or typo.
2) To establish a defense against formation.
3) To interpret vague or ambiguous terms (but
courts will interpret using the Plain Meaning
Rule).
4) To supplement a partially integrated writing.

Question 128

Partially Integrated Writing =

Answer 128

the writing does not contain a complete statement of all the terms.
− Proof is allowed if it does not contradict the writing.

Question 129

Fully Integrated Writing =

Answer 129

a complete and exclusive statement of terms; discharges prior agreements.
− Merger clause is evidence that the writing is complete on its face (fully integrated).

Question 130

The Parol Evidence Rule DOES NOT apply to

Answer 130

subsequent agreements.

Question 131

The oder following a final pretrial cnference shall be modified only when?

Answer 131

Only to prevent MANIFEST INJUSTICE

Leave of court to amend the pre-trial order is granted only to prevent manifest justice.

Question 132

Two Theories under which an oral agreement to convey land will be enforced: (not applicable in all states)

Answer 132

1. Unequiviocal Referability: used when the acts of the parties to the oral contract refer to the existence of the contract.
2. Equitable Fraud: Focuses upon the change of position of the party seeking to enforce the contract who was induced by the owner of the property and also focuses on the hardship that the purchaser would incur if he were not able to obtain title to the land. Hardship + Reliance.

Question 133

Liability for Negligence –

Answer 133

a negligence claim based on a defective product requires:
1) Duty owed to P;
2) Breach of that duty;
3) Causation (actual & proximate cause); AND
4) Damages.
Duty Owed → Product suppliers owe a duty to all foreseeable users, and MUST act as a reasonably prudent supplier would for the type of product.
− Breach→will be found if a supplier’s negligence results in a defective product.
− Suppliers are also liable for all foreseeable misuses of the product.
*Negligence MUST be shown.

Question 134

Strict Products Liability – A commercial supplier is strictly liable for any harm caused by its product.
Elements:

Answer 134

1) Product was defective when it left the hands of
D (manufacturing defect, design defect, or
failure to warn);
2) Product was not altered when it reached P;
3) Caused an injury to P when it was being used
in an intended or unintended foreseeable
use; AND
4) D is a commercial supplier who routinely deals
in goods of this type.

Question 135

Insanity – D must have a mental disease or defect, PLUS:

M’Naghten Test-
MPC Test-
Irresistible Impulse Test-

Answer 135

− M’Naghten Test → D is (a) unable to know the wrongfulness of his conduct, or (b) unable to understand the nature and quality of his acts.
− MPC Test → D was (a) unable to appreciate the criminality of his conduct, or (b) unable to conform his actions to the law.
− Irresistible Impulse Test→D’s mental illness made him (a) unable to control his actions, or (b) unable to conform his actions to the law.

Question 136

The Judge will allow a witness to remain silent based on the privilege against self-incrimination if:

Answer 136

The judge believes that there is SOME REASONABLE POSSIBILITY that she will incriminate herself.

Question 137

All offers are terminable by (2)

Answer 137

1. Effective revocation OR

2. Lapse of reasonable time

Question 138

Textbook/Treatise exception

Answer 138

A treatise may be introduced as evidence to prove the truth of the matter contained in it after an expert has testified and has also admitted the authoritative nature of the textbook. It also has to be relevant.

Question 139

Condition Precedent In a Contract – Makes performance conditional upon the completion of the condition.
BUT, the condition is excused when:

Answer 139

a) the protected party fails to make a good faith
effort to satisfy the condition; OR
b) waiver (voluntarily giving up protection) – but
can retract the waiver if the other party has not relied on it.

Question 140

Content-Neutral Restrictions – Govt. MAY regulate the time, place, and manner of content-neutral speech if it satisfies ________

Answer 140

intermediate scrutiny.
− Intermediate Scrutiny→Govt. must show that (1) the regulation is narrowly tailored, (2) to achieve a significant government interest, AND (3) it leaves open alternative channels of communication.

Question 141

Public Forum = Place traditionally available to the public for speech (i.e. parks, streets, public sidewalks).
− Content-Based Restriction → .
− Content Neutral Restriction →

Answer 141

− Content-Based Restriction → Must satisfy Strict Scrutiny.

− Content Neutral Restriction → Govt. MAY regulate time, place, and manner if it satisfies Intermediate Scrutiny.

Question 142

Redirect examination is limited by the scope of cross-examination

Answer 142

It cannot be used to reply to any matter addressed in cross, only to reply to any significant matters raised in a cross-examination

Question 143

If the buyer may be exposed to litigation then the title is

Answer 143

unmarketable

Question 144

the arrest warrant would have authorized forcible entry only if

Answer 144

the officers had reason to believe that the woman was at home at the time of the entry.

Question 145

Receiving Stolen Property –

Answer 145

when a person (1) receives possession of stolen property, (2) who knows the property is stolen when receiving it, (3) with the intent to permanently deprive the owner of the property.

If the cops recover stolen goods and use it to entrap then the goods are not stolen and it is not receiving stolen property.

Question 146

Abnormally Dangerous Activity –

Answer 146

Is an activity that:
1) is not of common usage in the community; AND
2) creates a foreseeable and highly significant risk
of physical harm (even when reasonable care is
exercised).
*D is subject to strict liability.

Question 147

Amendment to a pleading to change a party relates back to the date the original pleading was filed for purposes of the statute of limitations if:

Answer 147

1. The claim arises out of the conduct, transaction or occurrence set out in the original pleading. OR
2. If the new party received notice of the plaintiff’s original lawsuit and knew or should have known, that the action would have been brought against it, but for a mistake concerning the proper party’s identity.

Question 148

Evidence of a prior consistent statement by a witness is not hearsay if:

Answer 148

it is offered to rebut an implication of recent fabrication or improper influence or motive.

The testimony is admissible to rehabilitate the witness and for its substantive value

Question 149

A law that makes abenefit available to some people but denies it to others because of their religious affiliations may violate this provision because it imposes a burden on the exercise of a religious belief

Answer 149

The First Amendment prohibits laws that interfere with the free exercise of religion

Question 150

A private citizen or police officer is privileged to use

Answer 150

whatever non-deadly force he or she reasonably

believes is necessary to prevent the escape of a criminal from a crime

Question 151

Freedom of association is a corollary of the First Amendment freedoms of expression and assembly. For
this reason, it has been held that neither the federal nor the state government can impose a disability on
a person as a result of membership in an organization unless t

Answer 151

(1)The organization advocates illegal conduct
and
(2) the person is an active member who knows the organization’s unlawful purposes and specifically
intends to further them

Question 152

Under the collateral source rule, sums that a plaintiff receives from anyone other than a tortfeasor or a
tortfeasor’s representative are not relevant in determining:

Answer 152

the amount of damages to which the plaintiff’s entitled

Question 153

A defamatory statement is about the plaintiff if the

Answer 153

reasonable person who knows the plaintiff would recognize the plaintiff from the statement.

Question 154

If questioning during voir dire reveals a juror is biased,

Answer 154

the juror may be excused for cause. A juror has
an actual bias if the juror indicates he or she would use predetermined beliefs or principles instead of the
facts presented to determine a case.

Question 155

Prior Convictions – evidence of prior convictions may be admitted in certain instances.

Prior Felony / Misdemeanor involving Dishonesty →

Other Misdemeanors →

Civil & Criminal Cases →

Criminal Cases (only) →

10-Year Exception →

Pardon / Annulled Exception→

Answer 155

Prior Felony / Misdemeanor involving Dishonesty → ALWAYS admissible to impeach.
Other Misdemeanors → NOT admissible to impeach.
Felonies that DO NOT involve Dishonesty:
− Civil & Criminal Cases → Admissible if witness
is not the Defendant (subject to Rule 403
exclusions).
− Criminal Cases (only) → Admissible if D is the
witness but only if the probative value outweighs any prejudicial effect.
10-Year Exception → If 10-years have passed (from conviction or release from jail – whichever is later), the conviction is NOT admissible unless:
1) its probative value outweighs its prejudicial effect; AND
2) the proponent provides reasonable written notice to the adverse party.
Pardon / Annulled Exception→Evidence of a conviction is NOT admissible if it’s been pardoned or annulled based on a finding of innocence.

Question 156

IF you want a deed back

Answer 156

returning or destroying the deed has no effect on the conveyance

wanted to get the land back, he should have required his son to execute and deliver a new deed to him.

Question 157

Extortion

Answer 157

Consists of obtaining property from another by threatening future harm to persons, property,
or economic interests

Question 158

. It has been held that a threatening act is not an assault if accompanied by

Answer 158

words that make clear that the threat will not be carried out, since any apprehension experienced by the
plaintiff would not be reasonable. It is understood, however, that a defendant is not free to avoid assault
liability by demanding compliance with a condition that he or she has no legal right to impose

Question 159

If Federal Q can bring state claims or other claims only if:

Answer 159

if it arose from the same case or controversy.

Question 160

in determining whether a defendant’s conduct is privileged by First Amendment rights to freedom of
religion, it was proper

Answer 160

to consider whether the defendant’s religious beliefs were sincere.

Question 161

Strict liability is imposed on the professional supplier of a product that is defective and unreasonably
dangerous, if that defect proximately causes harm to a plaintiff whose contact with the product was
foreseeable.

Answer 161

If the reasonable person could not have anticipated the plaintiff’s contact with the chemical (i.e., the plaintiff’s contact with it was unforeseeable), strict liability cannot be imposed to benefit the plaintiff.

Question 162

TROs are generally not appealable unless

Answer 162

TRO gets extended to 30 days then it is treated like a preliminary injunction and can get appealed.

Question 163

Section 5 of 14th Amendment

Answer 163

Gives Congress the power to enforce provisions of the 14th Amendment by appropriate legislation. It is appropriate if (1) it seeks to prevent or remedy actions by state or local governments that violate provisions of the 14th and (2) its requirements are congruent with and proportionate to 14th Amendment violations it addresses.

Question 164

Adequacy of representation in a class action…

Answer 164

can be collaterally challenged in a subsequent lawsuit, and a class member will not be bound if there was inadequate representation in the first lawsuit

Question 165

A party can only require another party to undergo a mental or physical examination…

Answer 165

by obtaining a court order.

Question 166

Withdrawal is NOT a defense for the conspiracy

Answer 166

, but it is a defense for crimes committed by co-conspirators after the withdrawal.

Question 167

In regards to whether a party can rescind due to the other party being late for the closing in a real estate contract. The standard is:

Answer 167

Because circumstances contemplated by the parties at the time the contract was formed made it essential that the conveyance occurs on that date.

“Time is of the essence” phrase is a factor but not conclusive

Question 168

The party using an expert witness must automatically supply a written report containing

Answer 168

a completes statement of all opinions the expert will express and the basis and reasons for them.

Question 169

Article III establishes limits on the jurisdiction that may be exercised by the federal
courts.

Answer 169

Although it gives federal courts the power (i.e., jurisdiction) to hear controversies between
citizens of different states, or between citizens of the same state claiming lands under grants of different
states, it does not give the federal courts any power to hear contract disputes between residents of the
same state

Question 170

A misrepresentation is

Answer 170

a false assertion of material fact intended to induce the plaintiff’s reliance.

If the person did not know that any person would rely on her statement or a reasonable person would not have relied on her statement.

Question 171

Because of the constitutional requirement of due
process, however, persons who may be deprived of property as the result of a judicial proceeding must
be given notice of an opportunity to be heard in that proceeding. (Foreclosure)

Answer 171

For this reason, all persons with
existing present or future interests in the realty are necessary parties who must be served with process in
a foreclosure proceeding

Question 172

The Fifteenth Amendment provides that

Answer 172

the right to vote shall not be denied on account of race or

previous condition of servitude.

Question 173

Thirteenth Amendment provides that, except as a punishment for crime, “Neither slavery nor
involuntary servitude . . . shall exist within the United States,” and grants Congress the power to enforce
that provision

Answer 173

This, the Court stated, gives Congress the power

to define badges of servitude and to eliminate them by enacting legislation regulating private conduct

Question 174

Defamation liability can be imposed only for a

Answer 174

false statement, and because there is no such thing as a false opinion, defamation liability cannot be
imposed for an assertion of opinion

Question 175

(defamation) a statement is an assertion of opinion if

Answer 175

reasonable readers would recognize that it was an expression of the writer’s feelings and
would not believe that it was intended to assert a fact.

Question 176

To enforce the Benefit of a Covenant, must have:

Answer 176

1) a writing satisfying the statute of frauds,
2) intent that the covenant runs with the land,
3) vertical privity – when a successor holds the
entire interest held by a predecessor, AND
4) the covenant touches & concerns the land
(makes the land more useful or valuable).

Question 177

To enforce the Burden of a Covenant, must have elements (1)-(4) above, PLUS:

Answer 177

1) a writing satisfying the statute of frauds,
2) intent that the covenant runs with the land,
3) vertical privity – when a successor holds the
entire interest held by a predecessor, AND
4) the covenant touches & concerns the land
(makes the land more useful or valuable).

5) horizontal privity between the original parties (the two parties shared some interest in the land independent of the covenant), AND
6) the new owner must of had notice of the covenant.

Question 178

If an action is in federal court based on federal question jurisdiction, a federal court has the discretion to
remand the case to state court once

Answer 178

all the federal questions have been resolved based on principles of fairness and judicial economy

Question 179

Under the doctrine of impossibility of performance, a party may be excused from obligations under a
contract

Answer 179

if an unforeseeable change in circumstances has made performance vitally different than that
which was contemplated by the parties at the time the contract was formed

It does not matter if it was not foreseeable to the parties

Question 180

When an easement is created by grant, the language of the grant determines the scope of the easement.
When that language is unclear…

Answer 180

the courts most often determine the scope of the easement on the basis of what could REASONABLY have been ANTICIPATED at the time the easement was created.

Question 181

Where the legal significance of a writing depends upon its authorship, the writing cannot be admitted unless

Answer 181

the court (i.e., judge) finds that there is sufficient evidence to warrant a finding regarding its authorship.

Question 182

Under the view of the Restatement (2d) of Contracts, a promise made in recognition of a benefit previously received by the promisor from the promisee is

Answer 182

binding to the extent necessary to prevent injustice.

Question 183

Can a landlord sue a sublettor?

Answer 183

The landlord was an intended third-party

creditor beneficiary of the agreement between the attorneys, the landlord can also collect.

Question 184

A disabling restraint

Answer 184

purports to withhold the grantee’s power to alienate

Question 185

Under the doctrine of accession,

Answer 185

the owner of realty becomes the owner of anything that becomes part
of it as well

Question 186

One of the characteristics of Fee Simple Determinable is that it terminates

Answer 186

automatically upon the happening of the

specified event or condition.

Question 187

subpoena duces tecum

Answer 187

an order requiring the recipient to appear before the court and produce documents