July ’21

Question 1

To escape liability for a check, the writer must establish…

Answer 1

…a real defense against a holder in due course or a real or personal defense against a non-holder or holder not in due course.

Question 2

A holder in due course…

Answer 2

…takes the instrument for value, in good faith, and without notice that the item is overdue or dishonored.

This does not change when a HDC gets notice after becoming a HDC.

Question 3

Real defenses include…

Answer 3

…infancy, void contract, bankruptcy, forgery, deception, discharge known to holder.

Question 4

A transferee from a HDC who is not a HDC themself gains the rights of the HDC…

Answer 4

…under the shelter rule if the party is not personally engaged in wrongdoing affecting the instrument.

Question 5

[I’m not adding the law from part b of question 1 because it seems to me inconsistent with the law stated in the model answer for question 3 of the Feb ‘23 test.]

Question 6

Does a criminal defendant have a right to a judge in place of a jury?

Answer 6

No.

A jury trial may only be waived with the consent of the defendant, the Commonwealth, and the court.

Same rights for juvenile.

Question 7

When a juvenile is ___ years of age or older and is charged with a felony, ___ a direct indictment, …

Answer 7

16; Before.

…the juvenile court shall conduct a preliminary hearing and if the court finds probable cause it will certify the charge to the grand jury.

If the court finds probable cause, the court loses jurisdiction over the charge and any ancillary charges, and the Commonwealth may seek direct indictment. Until this happens, juvenile court has exclusive jurisdiction.

An indictment cures any error or defect in the juvenile court proceeding.

Question 8

Even after a suspect is read their Miranda rights, officers must stop interrogating them after a…

Answer 8

…clear indication of their desire to stop talking.

Must be more concrete than an equivocal expression of reservations about answering questions.

Question 9

The ___ of the ___ Amendment guarantees the right of cross examination, and a defendant can cross-examine a witness as to…

Answer 9

Confrontation Clause; Sixth.

…any evidence that bears on the credibility of the witness.

A plea bargain in exchange for one’s testimony is highly relevant because it means the witness’ testimony may be based on self interest.

Question 10

Accomplice liability categories:

Answer 10

-Principals in the second degree: persons who aided, advised, or encouraged the principal and were present at the crime
-Accessories before the fact: persons who assisted or encouraged but were not present
-Accessories after the fact: persons who, with knowledge that the other committed a felony, assisted them to escape arrest or punishment.

Question 11

Punishment of accomplices:

Answer 11

In felony cases, every principal in the second degree and accessory before the fact may be indicted, tried, convicted, and punished in all respects as if a principal in the first degree.

Being an accessory after the fact is a separate crime.

It is not necessary for the principal in the first degree to be convicted of the offense for another party to be convicted. However, it must be shown that a crime has been committed by the principal before the accessory can be convicted.

Question 12

Co-conspirators are liable for the…

Answer 12

…reasonably foreseeable acts of their co-conspirators in furtherance of the conspiracy.

Withdrawal communicated to all co-conspirators is a defense to this liability but not for the original conspiracy.

Question 13

Does VA recognize a presumption in favor of the mother for awarding custody?

Answer 13

No.

Question 14

[skipping the custody analysis in question 3.]

Question 15

An action by the Board of Directors of a ___ corporation must be approved by…

Answer 15

Non-stock.

…a majority of the directors in a vote taken when a quorum is present.

Question 16

A conflict of interest transaction made by a director on behalf of a corporation is permissible if:

Answer 16

either (1) it is approved by disinterested directors or members after disclosure of material facts or (2) it is fair the corporation.

Question 17

The sale of substantially all assets outside the regular course of business is…

Answer 17

…a fundamental corporate change and must be approved by the members of the non-stock corporation.

Question 18

If a testator with ___, does ___, such will is void and of no effect.

Answer 18

the intent to revoke a will;

cuts, tears, burns, obliterates, cancels, or destroys the will

Question 19

Once a will is revoked, the will cannot be revived unless it is…

Answer 19

…re-executed with full testamentary formalities.

The valid execution of a codicil that makes reference to the revoked will would cause the will to be revived under the republication by codicil.

Question 20

A codicil is…

Answer 20

…a later testamentary instrument that amends, alters, or modifies a previously executed will. A codicil must be executed with the same testamentary formalities as a will.

Question 21

A testator ___ disinherit her child.

Answer 21

May.

But this will not prevent the child from taking a portion of the estate that passes under intestacy.

Question 22

A deed may validly convey real property by inter vivos gift so long as there is…

Answer 22

…[1] donative intent, [2] delivery, and [3] acceptance.

The deed must [1] be in writing, [2] signed by the grantor; and reasonably identify [3] the parties and [4] the land.

The grantee becomes bound by the terms of the deed by his acceptance of a deed delivered by the grantor, even though a deed is signed only by the grantor.

Acceptance can be implied.

Question 23

The suretyship provision of the Statute of Frauds requires a writing for…

Answer 23

…a promise to answer for the debt, default, or misdoings of another.

A grantee who assumes an existing mortgage is not a surety.

Question 24

Parole evidence is…

Answer 24

…inadmissible to vary or contradict a complete and unambiguous written instrument.

This includes deeds.

Question 25

A contract may be ___ on the ground of ___ mistake.

Answer 25

reformed or rescinded in equity; mutual.

A unilateral mistake of fact, on the other hand, will not invalidate a contract.

Question 26

Diversity has two requirements:

Answer 26

First, there must be complete diversity of citizenship, i.e., every party on the plaintiff’s side must be a citizen of a different state from every party on the defendant’s side.

Second, the amount in controversy must exceed $75,000 exclusive of interests and costs.

A case will meet the requirement unless the court can say, to a legal certainty, that the plaintiff cannot recover more than $75,000 exclusive of interest and costs.

Question 27

PJ has two requirements:

Answer 27

Long arm statute; due process.

Question 28

The long arm statute’s provision for business transactions in VA is satisfied if ___ or more transactions occurred in VA.

Answer 28

One.

D does not have to step foot in VA to qualify.

Question 29

Due process for PJ requires…

Answer 29

…that the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice.

Contacts analysis considers foreseeability and purposeful availment. Not enough to place product in stream of commerce, must target the forum.

Contacts must be specifically related to the claims unless:

The defendant is “at home” in the forum state: Domiciled state (persons) or the state in which it was incorporated and the state in which it has its principal place of business OR every state in which the company’s activity is so systematic and continuous that the company is at home in the forum (corporations). Also service of process.

Question 30

Under the doctrine of unclean hands…

Answer 30

…a party seeking equitable relief must himself not have been guilty of inequitable or wrongful conduct that is related to the claim.

Question 31

The basic elements for specific performance of a contract are:

Answer 31

-the contract at issue is enforceable;
-all conditions precedent to performance have been satisfied;
-the contractual terms at issue are sufficiently definite to be enforced by the court;
-there is no adequate remedy at law;
-the defendant is able to perform or the performance can be abated; and
-it would be fair (equitable) to specifically enforce the contract.

Question 32

A court of equity will not decree specific performance of the agreement where it would entail great…

Answer 32

…hardship due to the conduct of the other party.

Question 33

To rescind a contract based on fraud…

Answer 33

…there must be a false statement of facts, positively made, not mere matters of erroneous opinions.

A concealment to afford ground of rescission for fraud must be a willful suppression of such facts in regard to the subject–matter of the contract as the party making it is bound to disclose.

Question 34

A party seeking to prevent by injunction the disposition of property they believe to be their own by a pending lawsuit should…

Answer 34

…file a motion to intervene in the case.

Intervention requires leave of court, and the court has considerable discretion in granting or refusing such a request.

Question 35

A temporary injunction requires:

Answer 35

-A legal right
-irreparable harm
-balance of equities weighs in favor of injunction
-likely to succeed on the merits
-exigent circumstances
-no adequate remedy at law

The granting of an injunction is an extraordinary remedy and rests upon the discretion of the court. It will not be awarded unless the court is satisfied of Susie’s equity.

Question 36

Counties enjoy ___ immunity from tort liability.

Answer 36

Absolute.

Question 37

Factors to determine whether an employee is covered by sovereign immunity:

Answer 37

(1) the nature of the function the employee performs, (2) the extent of the governmental entity’s interest and involvement in the function, (3) the degree of control and direction exercised by the governmental entity over the employee, and (4) whether the alleged wrongful act involved the exercise of judgment and discretion.

The court also considers whether plaintiff is asserting a claim of negligence as compared to gross negligence or intentional conduct.